Mandatory Registration. (a) On or prior to the Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent. (b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date. (c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 2 contracts
Sources: Securities Purchase Agreement (Republic First Bancorp Inc), Securities Purchase Agreement (Republic First Bancorp Inc)
Mandatory Registration. (ai) On or prior to The Issuer shall prepare and, no later than the Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission SEC, a Registration Statement on Form S-3 covering the resale of all of Warrant Shares. If Form S-3 is unavailable for such a registration, the Registrable Securities not already covered by an existing and effective Issuer shall use such other form as is available for such a registration (the Registration Statement for an offering to be made on a continuous basis filed pursuant to Rule 415 orthis Section 1(b)(i), if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Resale Registration Statement”). .
(ii) The Issuer shall use its commercially reasonable efforts to have such Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the Effectiveness Deadline, and shall use its commercially reasonable efforts to keep such Registration Statement continuously effective under the 1933 Act until the earlier of the date when all Registrable Securities covered by such Registration Statement (A) have been sold, thereunder or pursuant to Rule 144, or (B) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Issuer to be in compliance with the current public information requirement under Rule 144, as determined by counsel to the Issuer pursuant to a written opinion letter to such effect, addressed and acceptable to the Issuer’s transfer agent and the Holder (the “Effectiveness Period”).
(iii) Notwithstanding the registration obligations obligation set forth in this Section 21(b), in if the event that (i) SEC informs the Company’s counsel determines Issuer that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company Issuer agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or Holder and use its commercially reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”)SEC, in each case covering the maximum number of such Registrable Securities permitted to be registered thereonby the SEC, on Form S-3 or such other form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement; provided, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted however, that prior to be registered on a particular Registration Statement as a secondary offeringfiling such amendment, the number of Registrable Securities Issuer shall be obligated to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary diligent efforts to file advocate with the Commission, as promptly as allowed by Commission or SEC Guidance provided to for the Company or to registrants registration of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold in accordance with any interpretive guidance provided by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144SEC, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company Compliance and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)Disclosure Interpretation 612.09.
Appears in 2 contracts
Sources: Registration Rights Agreement (Clean Energy Fuels Corp.), Warrant Agreement (Clean Energy Fuels Corp.)
Mandatory Registration. (ai) On Following the date of this Agreement, the Company shall prepare, and, on or prior to the applicable Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission SEC a Registration Statement (the “Mandatory Registration Statement”) on Form S-3 (or, if Form S-3 is not then available, on such form of Registration Statement as is then available to effect a Registration of all of the Registrable Securities, subject to the consent of the Investors (which consent shall not be unreasonably withheld)), covering the resale of all of the Registrable Securities, which Registration Statement, to the extent allowable under the Securities Act and the rules and regulations promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon exercise of or otherwise pursuant to or in respect of the Warrants to prevent dilution resulting from stock splits, stock dividends or similar transactions. The number of shares of Common Stock initially included in such Registration Statement shall be no less than 16,000,000, subject to adjustment for any Stock Event (as defined in the Warrants) occurring prior to the effective date of such Registration Statement.
(ii) If for any reason, despite the Company’s use of its reasonable best efforts to include all of the Registrable Securities requested or required to be included in any Registration Statement filed pursuant to Section 2(a)(i) (and subject to Section 3(p) below), the SEC does not permit all such Registrable Securities to be included in such Registration Statement, or for any other reason any such Registrable Securities are not then included in a Registration Statement, then the Company shall prepare, and, as soon as practicable but in no event later than the Additional Filing Deadline, file with the SEC an additional Registration Statement on Form S-3 (or, if Form S-3 is not then available, on such form of Registration Statement as is then available to effect a Registration of the Registrable Securities, subject to the consent of the Investors, which consent shall not be unreasonably withheld) covering the resale of all Registrable Securities requested or required to be included in such Registration Statement filed pursuant to Section 2(a)(i) and not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or415.
(iii) Subject to any SEC comments, if Rule 415 is not available for offers and sales any Registration Statement pursuant to this Section 2(a) shall include a “plan of distribution” approved by the holders of a majority-in-interest of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on included in such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder Investor shall be named as an “underwriter” in any the Registration Statement without such ▇▇▇▇▇▇the Investor’s prior written consent. Each Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to, and shall be subject to the approval, which shall not be unreasonably withheld or delayed, of each Investor and its Legal Counsel (as defined below) prior to its filing or other submission.
(biv) The At any time after the effective date of the applicable Registration Statement, the Company may suspend the use of any prospectus forming a part of such Registration Statement if the Company determines that it would otherwise be required to disclose material non-public information concerning the Company, the disclosure of which (i) is not otherwise required and which the Company has a bona fide business purpose for preserving in confidence and (ii) at the time is not, in the good faith opinion of the Company and its counsel, in the best interests of the Company (the period of such suspension, a “Grace Period”); provided, that the Company shall use reasonable (i) promptly notify the Investors in writing of the existence of material non-public information giving rise to a Grace Period (provided that in each notice the Company shall not disclose the content of such material non-public information to any Investor unless otherwise requested in writing by such Investor) and customary efforts to cause each Required Registration Statement to be declared effective by the Commission date on which the Grace Period will begin, and (ii) as soon as practicablesuch date may be determined, promptly notify the Investors in writing of the date on which the Grace Period ends; and, with respect to the Initial Registration Statement or the New Registration Statementprovided, as applicablefurther, that (A) no later than the Effectiveness DeadlineGrace Period shall exceed forty-five (45) consecutive days, (B) during any three hundred sixty-five (365) day period, such Grace Periods shall not exceed an aggregate of seventy-five (75) days, and shall use reasonable and customary efforts to keep (C) the first day of any Grace Period must be at least ten (10) Trading Days after the last day of any prior Grace Period (each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as Grace Period that satisfies all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (iirequirements of this Section 2(a)(iv) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for Allowable Grace Period”). For purposes of clauses determining the length of a Grace Period above, the Grace Period shall begin on and include the date the Investors receive the notice referred to in clause (i), ) and shall end on and include the later of the date the Investors receive the notice referred to in clause (ii), (iii) or (v), and the date on which referred to in such Event occurs, or for purposes notice. The provisions of clause (ivSection 3(e) hereof shall not be applicable during the date on which such period of any Allowable Grace Period is exceeded, being referred to as and the unavailability of a Registration Statement for resales of the Registrable Securities on any day during an Allowable Grace Period shall not constitute a “Event Date”), then in addition to any other rights Registration Failure.” Upon expiration of the Holders may have hereunder or under applicable law, on the first such Event DateGrace Period, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% again be bound by the first sentence of the aggregate purchase price paid by such Holder pursuant Section 3(e) with respect to the Purchase Agreement for any Registrable Securities held by information giving rise thereto unless such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period)is no longer applicable. If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after notifies the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement Investors in accordance with this Section 2(a)(iv) to suspend the requirements use of any prospectus forming a part of a Registration Statement filed hereunder during an Allowable Grace Period, then the Securities Act (in which case Investors shall suspend use of such prospectus until the Effectiveness Deadline would be extended with respect to Registrable Securities held by end of such Registration Rights Purchaser)Allowable Grace Period.
Appears in 2 contracts
Sources: Registration Rights Agreement (NanoString Technologies Inc), Registration Rights Agreement (NanoString Technologies Inc)
Mandatory Registration. (a) On At any time from and after two hundred seventy (270) days after the Closing Date (as defined in the Contribution Agreement) and for so long as the Shareholder or prior to the Filing Deadlinehis permitted assignee(s) hereunder own beneficially or of record any Registrable Securities or Warrants which have not expired by their terms, the Company shall, following upon the written request (hereinafter a “notice”) of a holder or holders of a majority of the Registration Rights Purchasersthen outstanding Registrable Securities, and subject to the covenants, terms and conditions of Section 2(b) below, prepare and file with the Commission a Registration Statement on Form S-3 under the Securities Act, pursuant to Rule 415 under the Securities Act, covering the resale from time to time, of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution shares of Registrable Securities as such holder or holders shall request and the Company may reasonably determine (shall use commercially reasonable efforts to have the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2Statement declared effective as soon as practicable thereafter; provided, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannotmay, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments by notice to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel requesting holder or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statementholders, as the case may be, under clauses delay such requested registrations for the Maximum Delay Period if and for so long as the Delay Conditions exist. The Registration Statement shall contain the “Plan of Distribution” in substantially the form attached hereto as Exhibit B. The Company shall not be obligated pursuant to this Section 2 to effectuate more than one (A1) or registration in any twelve (B12) abovemonth period for the benefit of the holders of Registrable Securities. In the event that Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company will use reasonable shall register the resale of the Registrable Securities on another such other available form of Registration Statement reasonably acceptable to the requesting holder or holders. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 2:
(i) within one hundred eighty (180) days after the effective date of a Registration Statement filed by the Company covering a primary underwritten public offering of securities of the Company under the Securities Act with an aggregate offering price (before underwriting commissions and customary efforts to file expenses) of at least Ten Million Dollars ($10,000,000); provided that such offering was made in accordance with Section 6(a) below, or
(ii) during the period starting with the Commission, as promptly as allowed by Commission or SEC Guidance provided date sixty (60) days prior to the Company’s estimated date of filing of, and ending on the date one hundred (180) days immediately following the effective date of any Registration Statement pertaining to securities of the Company or to registrants (other than a registration of securities in generala Rule 145 transaction or with respect to an employee benefit plan), one or more registration statements on such form available to provided that the Company is actively employing in good faith commercially reasonable efforts to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New cause such Registration Statement (to become effective and that the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Company’s estimate of the date of filing such Registration Statement without such ▇▇▇▇▇▇’s prior written consentis made in good faith.
(b) The Immediately following receipt of any notice pursuant to Section 2(a), the Company shall promptly notify all holders of Registrable Securities and Warrants from whom such notice has not been received and, as soon thereafter as practicable, and subject to any Delay Conditions, shall file a Registration Statement with the Commission and use commercially reasonable and customary efforts to cause each Required have such Registration Statement to be declared effective by under the Commission Securities Act as soon as practicable, so as to permit the public sale in accordance with the method of disposition specified in such notice from requesting holders (such method of disposition shall be as requested by such holder or holders of a majority of Registrable Securities included in such notices received by the Company) of the number of shares of Registrable Securities specified in such notice (and in all notices received by the Company from other holders within twenty (20) days after the giving of such notice by the Company). If such method of disposition shall be an underwritten public offering, subject to the covenants, terms and conditions of Section 6 below, the Company shall designate the managing underwriter of such offering, following consultation and subject to the approval of the holders of Registrable Securities from whom notice has been received, which approval shall not be unreasonably withheld, conditioned or delayed. All holders of Registrable Securities and/or Warrants providing notice to the Company pursuant to the foregoing, must participate in such underwriting. The Company’s registration obligation hereunder shall be deemed satisfied only when a Registration Statement(s) covering all shares of Registrable Securities specified in notices received as aforesaid, for sale in accordance with the method of disposition specified by the requesting holders, shall have become effective and, with respect to the Initial Registration Statement or the New Registration Statementif such method of disposition is a firm commitment underwritten public offering, as applicable, no later than the Effectiveness Deadline, and all such shares shall have been sold pursuant thereto.
(c) The Company shall use commercially reasonable and customary efforts efforts:
(i) to keep each Required the Registration Statement continuously effective under in order to permit the Prospectus to be usable by holders for resales of Registrable Securities Act until the earlier of (iA) such time as the sale under the Registration Statement of all the Registrable Securities registered thereunder and (B) all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased securities ceasing to be outstanding; or (iv) the date such Registrable Restricted Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, period being referred to herein as the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.; and
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) after the Initial Registration Statement or Effective Time and during the New Registration StatementEffectiveness Period, as applicable, promptly upon the request of any holder of Registrable Securities and/or Warrants that is not declared effective by then an Electing Holder, to take any action reasonably necessary to enable such holder to use the Commission (or otherwise does not become effective) Prospectus for any reason on or prior to the Effectiveness Deadlineresales of Registrable Securities, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of any action necessary to identify such holder as a stop order, or the Company’s failure to update selling stockholder in the Registration Statement); provided, to remain continuously effective as to all Registrable Securities for which it is required to be effectivehowever, or (B) the Holders are not permitted to utilize the Prospectus therein to resell that nothing in this subparagraph shall relieve such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% holder of the aggregate purchase price paid by such Holder pursuant obligation to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel return a completed and signed Notice and Questionnaire to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)Section 3(a) hereof.
Appears in 2 contracts
Sources: Registration Rights Agreement (Renegy Holdings, Inc.), Registration Rights Agreement (Renegy Holdings, Inc.)
Mandatory Registration. (a) On or As promptly as possible after the date hereof, and in any event prior to the date that is seventy-five (75) days following the Closing Date (the “Mandatory Filing DeadlineDate”), the Company shall, following the written request of the Registration Rights Purchasers, shall prepare and file with the Commission SEC a Registration Statement covering on Form SB-2 (or on such other appropriate form for the resale required purpose) for the purpose of registering under the Securities Act all of the Registrable Securities not already covered by Shares for resale by, and for the account of, each Investor as an existing and effective initial selling stockholder thereunder (the “Mandatory Registration Statement”). The Mandatory Registration Statement for an offering shall permit the Investors to be made offer and sell, on a delayed or continuous basis pursuant to Rule 415 orunder the Securities Act, if Rule 415 is not available for offers and sales any or all of the Registrable Securities, by such other means Shares and shall contain (except if otherwise required pursuant to written comments received from the SEC upon a review of distribution of Registrable Securities as the Company may reasonably determine (Mandatory Registration Statement) the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, Plan of Distribution” attached hereto as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Annex A. The Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary its best efforts to cause each Required the Mandatory Registration Statement to be declared effective by the Commission as soon as practicablepossible but in no event later than the date that is 120 days following the Closing Date (or 150 days following the Closing Date in the event the Registration Statement is the subject of a review by the SEC) (the “Mandatory Effective Date”) (including filing with the SEC, andwithin five (5) Business Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the SEC that the Mandatory Registration Statement will not be “reviewed” or will not be subject to further review, a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities Act (an “Acceleration Request”), which request shall request an effective date that is within three (3) Business Days of the date of such request) and will otherwise effect all such registration, obtain all such qualifications and comply with all such laws, rules and regulations as may be necessary to permit the sale, transfer and other disposition of the Registrable Shares by the Investors thereof pursuant to the Mandatory Registration Statement. The Company shall notify each Investor in writing promptly (and in any event within three (3) Business Days) after the Company’s submission of an Acceleration Request to the SEC. The Company shall be required to keep the Mandatory Registration Statement and any qualification, exemption or compliance under state securities laws which the Company determines to obtain or which the Company obtains at the request of the Investors continuously effective (including through the filing of any required post-effective amendments) with respect to the Initial Investors, and to keep such Registration Statement and related prospectus free of any material misstatements or the New Registration Statementomissions, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier to occur of (i) such time as the date after which all of the Registrable Securities covered by such Required Registration Statement Shares registered thereunder shall have been sold by the Holders; or (ii) the date that after which all of the Registrable Shares (excluding such Registrable Shares as are registered pursuant to any other effective Registration Statement) are freely tradable without any volume limitations by the Investors pursuant to Rule 144(k) promulgated under the Securities covered by such Required Act or any successor or substitute rule, law or provision. Thereafter, the Company shall be entitled to withdraw the Mandatory Registration Statement may be sold and, upon such withdrawal, the Investors shall have no further right to offer or sell any of the Registrable Shares pursuant to the Mandatory Registration Statement (or any prospectus relating thereto).
(b) Notwithstanding anything in this Section 2 to the contrary, if the Company shall furnish to the Investors a certificate signed by the Holders without volume or manner Chief Executive Officer of sale restrictions under Rule 144, as determined by counsel to the Company stating that the Board has made the good faith determination (i) that the continued use by the Investors of the Mandatory Registration Statement for purposes of effecting offers or sales of Registrable Shares pursuant to a written opinion letter to hereto would require, under the Securities Act and the rules and regulations promulgated thereunder, premature disclosure in the Mandatory Registration Statement (or the Prospectus relating thereto) of material, nonpublic information concerning the Company, its business or prospects or any proposed material transaction involving the Company, (ii) that such effect, addressed and reasonably acceptable premature disclosure would be materially adverse to the Company’s transfer agent; , its business or prospects or any such proposed material transaction or would not be in the best interests of the Company and (iii) that it is therefore essential to suspend the date such use by the Investors, of the Mandatory Registration Statement (and the Prospectus relating thereto), then the right of the Investors to use the Mandatory Registration Statement (and the Prospectus relating thereto) for purposes of effecting offers or sales of Registrable Securities have ceased to Shares pursuant thereto shall be outstanding; suspended for a period (the “Suspension Period”) not greater than fifteen (15) Business Days during any consecutive twelve (12) month period. During the Suspension Period, the Investors shall not offer or (iv) the date such sell any Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned Shares pursuant to Section 8(k) or in reliance upon the Mandatory Registration Statement (such time period, or the “Effectiveness Period”Prospectus relating thereto). The Company shall request effectiveness of a Required Registration Statement agrees that, as of 4:00 p.m.promptly as possible, Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within but in no event later than one (1) Business Day Day, after the consummation, abandonment or public disclosure of the Effective Date, unless already available on event or transaction that caused the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required to suspend the use of the Mandatory Registration Statement with (and the CommissionProspectus relating thereto) pursuant to this Section 2(b), as required by Rule 424(b) the Company will as promptly as reasonably practicable following possible lift any suspension, provide the Effective DateInvestors with revised Prospectuses, if required, and will notify the Investors of their ability to effect offers or sales of Registrable Shares pursuant to or in reliance upon the Mandatory Registration Statement.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior It shall be a condition precedent to the Filing Deadlineobligations of the Company to register Registrable Shares for the account of an Investor pursuant to this Section 2 or Section 3 that such Investor furnish to the Company such information regarding itself, the Registrable Securities held by it, and the method of disposition of such securities as shall be required by the SEC to effect the registration of such Investor’s Registrable Securities.
(iid) In the Initial event that the Mandatory Registration Statement or the New Registration Statement, as applicable, other required registration statement is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to SEC by the Effectiveness Deadline, or (iii) after its Mandatory Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, Investor as liquidated damages for such failure and not as a penalty the following amounts: one percent (1%) of the purchase price (as set forth in the Securities Purchase Agreement) for the first month after the Mandatory Effective Date; one and one-half percent (1.5%) commencing on the first day of the second month through the last day of the third month after the Mandatory Effective Date; two percent (2%) commencing on the first day of the fourth month through the last day of the fifth month after the Mandatory Effective Date; and thereafter a one-half percent (0.5%) increase each quarter (the “Liquidated DamagesDamages Amount”), each month for such time period beyond the Mandatory Effective Date that such registration statement is not effective or beyond any applicable Suspension Period (a “Penalty Period”) (for purposes of clarity, it is hereby understood and agreed that, solely for the purpose of this Section 2(d), the deemed purchase price for each Share is $1.20 and the purchase price of each Warrant underlying each Unit shall be deemed to be equal to 3.0% $0.30, provided that the dollar amounts set forth in this parenthetical clause shall be appropriately adjusted in the event of the aggregate purchase price paid by such Holder any adjustment, pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as terms of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitationWarrants, in the event exercise price of the Warrants or the number of shares issuable upon exercise of the Warrants); provided, however, that the amount payable to any Investor hereunder for any partial Penalty Period will not be pro-rated for the number of actual days during such Penalty Period during which a Grace registration default remains uncured. Such payment of liquidated damages shall be made to each Investor within five (5) calendar days after the Penalty Period exceeds either, at the length of an Allowable Grace PeriodInvestor’s option, (1) because of possession of material non-public information in cash or (iv2) with respect to any period after the expiration in additional shares of Common Stock of the Effectiveness Period Company, such shares being valued at the average of the VWAPs of the Common Stock as reported by Bloomberg Financial L.P. (it being understood based on a trading day from 9:30 a.m. to 4:02 p.m. Eastern Time) using the VAP function over the 20 trading days immediately prior to the Mandatory Effective Date; provided, however, that this clause the payment of such liquidated damages shall not relieve the Company of any Liquidated Damages accruing prior from its obligations to register the expiration of the Effectiveness Period)Registrable Shares pursuant to this Agreement. If the Company fails to pay any Liquidated Damages pursuant said cash payment to this Section (c) a Investor entitled thereto by the applicable date specified in full within ten (10) Business Days after the date payableimmediately preceding sentence, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder thereon at a rate of 0.512% per month on an annualized basis annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holdersuch Investor, accruing daily from the date such Liquidated Damages liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. With respect The total amount of liquidated damages payable to a Holderthe Investors pursuant to this Section 2(d), including any interest thereon, shall in no event exceed twenty five percent (25%) of the purchase price for the Units (as set forth in the Securities Purchase Agreement).
(e) During any Penalty Period, the Effectiveness Deadline for Company shall not (i) file any other registration statement, (ii) file any amendment to any other registration statement, or (iii) request acceleration of the effective date of any other registration statement registering with the SEC any securities of the Company until the Company has cured the condition leading to such Penalty Period, unless such filing or request has been approved by the holders of a Required Registration Statement majority of the Registrable Securities; provided, however, that the foregoing shall be extended without default or Liquidated Damages hereunder in the event that not limit the Company’s failure right to obtain the effectiveness file or request acceleration of the Registration Statement on a timely basis results from the failure effective date of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)any other registration statements using Forms S-4 or S-8 or other applicable successor Forms.
Appears in 2 contracts
Sources: Registration Rights Agreement (Gran Tierra Energy, Inc.), Registration Rights Agreement (Gran Tierra Energy, Inc.)
Mandatory Registration. (a) On or prior to the Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, shall prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use its commercially reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering; provided, that in the case of (ii) above, prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its commercially reasonable efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Securities Act Rules Compliance and Disclosure Interpretation 612.09, or any successor thereto. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offeringoffering (and, in the case of clause (ii) above, notwithstanding that the Company used commercial reasonable efforts to reasonably advocate with the Commission for the registration of all or a greater number of Registrable Securities), the number of Registrable Securities to be registered on such Registration Statement will be reduced on a pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holdersuch person, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c2(c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use its commercially reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇Holder’s prior written consent, which shall not be unreasonably withheld.
(b) The Company shall use its commercially reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use its commercially reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been publicly sold by the Holders; Holders or (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; agent (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”); provided, however, if the Company does not meet the eligibility requirements for filing on Form S-3 (or any successor registration statement form) at the time of filing of a Required Registration Statement, the Effectiveness Period shall not exceed 180 days following the Effective Date. The Company shall request effectiveness of a Required Registration Statement as of 4:00 5:00 p.m., Philadelphia New York City time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first each such Event DateDate and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.02.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c2(c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.51.0% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. The Liquidated Damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Event, except in the case of the first Event Date. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 2 contracts
Sources: Stock Purchase Agreement (HCSB Financial Corp), Registration Rights Agreement (Castle Creek Capital Partners VI, LP)
Mandatory Registration. (ai) On Following the date of this Agreement, the Company shall prepare, and, on or prior to the applicable Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission SEC a Registration Statement (the “Mandatory Registration Statement”) on Form S-3 (or, if Form S-3 is not then available, on such form of Registration Statement as is then available to effect a Registration of all of the Registrable Securities, subject to the consent of the Required Investors, which consent shall not be unreasonably withheld), or file one or more prospectus supplements to an effective Shelf Registration Statement of the Company, covering the resale of all of the Registrable Securities, which Registration Statement (or prospectus supplement), to the extent allowable under the Securities Act and the rules and regulations promulgated thereunder (including Rule 416), shall state that such Registration Statement (or prospectus supplement) also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion (as applicable) of or otherwise pursuant to or in respect of the Notes to prevent dilution resulting from stock splits, stock dividends, stock issuances or similar transactions. The number of shares of Common Stock initially included in such Registration Statement (or prospectus supplement) shall be no less than 54,968,244, subject to adjustment for any Stock Event occurring prior to the effective date of such Registration Statement.
(i) If for any reason, despite the Company’s use of its reasonable best efforts to include all of the Registrable Securities requested or required to be included in any Registration Statement (or prospectus supplement) filed pursuant to Section 2(a)(i) (and subject to Section 3(j) below), the SEC does not permit all such Registrable Securities to be included in such Registration Statement, or for any other reason any such Registrable Securities are not then included in a Registration Statement (or prospectus supplement), then the Company shall prepare, and, as soon as practicable but in no event later than the Additional Filing Deadline, file with the SEC an additional Registration Statement on Form S-3 (or, if Form S-3 is not then available, on such form of Registration Statement as is then available to effect a Registration of the Registrable Securities) covering the resale of all Registrable Securities requested or required to be included in such Registration Statement filed pursuant to Section 2(a)(i) and not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or .
(ii) Subject to any SEC comments, any Registration Statement pursuant to this Section 2(a) shall include a “plan of distribution” in substantially the Commission informs form attached hereto as Exhibit A. If requested by the Company that all such Registrable Securities cannot, as holders of a result majority-in-interest of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on included in such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstancesStatement, the Company will not be subject shall incorporate in the "plan of distribution" such information as such holders may reasonably request to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”)have included therein. No Holder Investor shall be named as an “underwriter” in any the Registration Statement without such ▇▇▇▇▇▇the Investor’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required . Each Registration Statement to (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be declared effective by the Commission as soon as practicable, and, with respect provided to the Initial Registration Statement or the New Registration Statement, Required Investors and Legal Counsel (as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (idefined below) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement its filing or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)submission.
Appears in 2 contracts
Sources: Registration Rights Agreement (Brookdale Senior Living Inc.), Registration Rights Agreement (Brookdale Senior Living Inc.)
Mandatory Registration. (a) On or prior to The Company shall prepare, and, as soon as practicable but in no event later than the Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission SEC a Registration Statement on Form S-3 covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or415, or if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of the Registrable Securities as the Company may reasonably determine determine. In the event that Form S-3 is unavailable for such a registration, the Company shall file a Registration Statement on Form S-1, subject to the provisions of Section 2(d). The Registration Statement shall contain (except if otherwise directed by the Required Holders) the “Initial Selling Stockholders” and “Plan of Distribution” sections attached hereto as Exhibit B. The Company shall use its reasonable best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the Effectiveness Deadline. By 9:30 a.m. on the Business Day following the Effective Date, the Company shall file with the SEC in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in if the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission SEC informs the Company that all such of the Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (Ai) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or and use its reasonable and customary best efforts to file amendments to the Initial such Registration Statement as required by the Commission SEC and/or (Bii) withdraw the Initial such Registration Statement and file a new registration statement (a “New Registration Statement”), in each either case covering the maximum number of such Registrable Securities permitted to be registered thereonby the SEC, on Form S-3 or such other form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets offering as set forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser2(e).
Appears in 2 contracts
Sources: Registration Rights Agreement (Xspand Products Lab, Inc.), Registration Rights Agreement (Xspand Products Lab, Inc.)
Mandatory Registration. (ai) On Following the Agreement Date, the Company shall prepare, and, on or prior to the applicable Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission SEC a Registration Statement (the “Mandatory Registration Statement”) on Form S-3 (or, if Form S-3 is not then available, on such form of Registration Statement as is then available to effect a registration of the Registrable Securities, subject to the consent of the Investors, which consent shall not be unreasonably withheld), covering the resale of all of the Registrable Securities that are not already at that time covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Existing Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” then in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable effect and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all available for resale of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144thereby), as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadlineextent allowable under the Securities Act and the rules and regulations promulgated thereunder (including Rule 416), or (iii) after its Effective Date, (A) shall state that such Registration Statement ceases to be effective for any reason (including without limitation by reason also covers such indeterminate number of a stop order, additional shares of Common Stock as may become issuable upon exercise of or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder otherwise pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on Warrants or the Event DateWarrant Shares to prevent dilution resulting from stock splits, stock dividends, stock issuances or similar transactions. The parties agree that notwithstanding anything to the contrary herein or number of shares of Common Stock initially included in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended no less than the aggregate number of Warrant Shares that are then issuable upon exercise of or otherwise pursuant to the Warrants, without default or Liquidated Damages hereunder in regard to any limitations on the event that Investors’ ability to exercise the Company’s failure to obtain the effectiveness of the Warrants. Each Registration Statement on a timely basis results from (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to (and shall be subject to the failure of such Holder approval, which shall not be unreasonably withheld or delayed, of) the Investors and their counsel prior to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)its filing or other submission.
Appears in 2 contracts
Sources: Registration Rights Agreement (Endologix Inc /De/), Facility Agreement (Endologix Inc /De/)
Mandatory Registration. (a) On or prior to the Filing Deadline, the The Company shall, following the written request of the Registration Rights Purchasers, shall prepare and file with the Commission SEC a Registration Statement on Form S-3 (if the Company is eligible to use such form) covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or shall use its commercially reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on have such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, SEC or to become effective in accordance with respect to the Initial Registration Statement or the New Registration Statement, as applicable, SEC rules and applicable law no later than the Effectiveness Deadline. In the event that Form S-3 is unavailable for such a registration or the Company ceases to be eligible to file or use a Registration Statement on Form S-3, the Company shall use another appropriate form and shall use provide for the registration of such Registrable Securities for resale by the Investors in accordance with any reasonable method of distribution elected by the Investors. The Registration Statement prepared pursuant to this Section 2(a) shall register for resale at least 110% of the maximum number of Common Purchased Shares and customary efforts Conversion Shares then issued and issuable pursuant to keep each the Securities Purchase Agreement and the terms of the Series A Preferred Shares (without regard to any limitation on the issuance of Conversion Shares pursuant to the terms of the Series A Preferred Shares) determined as of the date the Registration Statement is initially filed with the SEC, plus such additional Common Shares or Conversion Shares issuable as a result of share splits, share dividends and anti-dilution provisions pursuant to Rule 416, subject to adjustment as provided in Section 2(d) (the "Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Amount"). The Registration Statement have been sold by the Holders; shall contain (iiexcept if not permitted under SEC regulations or not advisable under SEC rules or guidance) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner "Plan of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to Distribution" and "Selling Stockholders" sections in a written opinion letter to such effect, addressed and form reasonably acceptable to the Company’s transfer agent; (iii) Investors. By 5:30 p.m. New York time on the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) second Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Date of such Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of file with the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement SEC in accordance with Rule 424 under the requirements of the Securities 1933 Act ("Rule 424") the final prospectus to be used in which case the Effectiveness Deadline would be extended connection with respect sales pursuant to Registrable Securities held by such Registration Rights Purchaser)Statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Ritchie Bros Auctioneers Inc), Securities Purchase Agreement (Ritchie Bros Auctioneers Inc)
Mandatory Registration. (a) On or prior to the Filing Deadline, the The Company shall, following the written request of the Registration Rights Purchasers, shall prepare and file with the Commission SEC a Registration Statement covering registration statement on Form S-3 or Form F-3 pursuant to Rule 415 promulgated under the Securities Act (or any successor rule, “Rule 415”) so as to permit the resale of such Registrable Securities by the Holders, and shall use its commercially reasonable efforts to (a) cause such registration statement to be declared effective within the date that is six (6) months following the date hereof and (b) cause such registration statement to remain effective and to be supplemented and amended to the extent necessary to ensure that such registration statement is available or, if not available, that another registration statement is available, for the resale of all of the Registrable Securities not already covered held by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales the Holders at all times until the earlier of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that date on which the Holders shall have sold, either publicly pursuant to such registration statement or pursuant to Rule 144, all such the Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs date on which the Holders can sell all of its Registrable Securities under Rule 144 without restriction as to volume or manner of sale during any three-month period. A registration statement filed pursuant to this Section 2.1 shall provide for the resale pursuant to any method or combination of methods legally available to, and requested by, the Holders. As soon as practicable following the effective date of a registration statement filed pursuant to this Section 2.1, but in any event within three (3) Business Days of such date, the Company that shall notify the Holders of the effectiveness of such registration statement.
(b) If the Holders of at least 50.0% of the then outstanding number of Registrable Securities held by the Holders (the “Underwritten Demand Holders”) elect to distribute the Registrable Securities by means of an underwriting and reasonably expect aggregate gross proceeds in excess of $25,000,000 (the “Holders’ Minimum Amount”) from such underwritten offering, they shall so advise the Company promptly and the Company shall enter into an underwriting agreement in a form as is customary in underwritten offerings of securities by the Company with the underwriters selected by the Underwritten Demand Holders and reasonably satisfactory to the Company and shall take all such other reasonable actions as are requested by the managing underwriter or underwriters in order to expedite or facilitate the disposition of such Registrable Securities; provided, however, that the Company shall have no obligation to facilitate or participate in more than two (2) underwritten offerings pursuant to this Section 2.1. In connection with any underwritten offering contemplated in this Section 2.1, the underwriting agreement into which each Holder and the Company shall enter shall contain such representations, covenants, indemnities and other rights and obligations as are customary in underwritten offerings of securities by the Company; provided, that no Holder shall be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder’s authority to enter into such underwriting agreement and to sell, and its ownership of, the securities being registered on its behalf, its intended method of distribution, the accuracy of information provided by a Holder specifically for use in such registration statement or prospectus, and any other representation required by law. The Holders shall determine the pricing of the Registrable Securities cannot, as a result of offered pursuant to the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, applicable underwriting discount and other financial terms (including the Company agrees to promptly (A) inform each material terms of the Holders thereof and, as applicable, file applicable underwriting agreement) and determine the Initial Registration Statement, or use reasonable timing of any such registration and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offeringsale. Notwithstanding any other provision of this AgreementSection 2.1, if the opinion of underwriter advises the Company’s counsel or any SEC Guidance sets forth Company that marketing factors require a limitation of on the number of securities underwritten (including Registrable Securities), then the Company shall so advise all Holders of Registrable Securities permitted to that would otherwise be registered on a particular Registration Statement as a secondary offeringunderwritten pursuant hereto, and the number of shares of Holders of Registrable Securities that may be included in the underwriting shall be allocated: (i) first, to Registrable Securities, together with the holders of any other securities of the Company entitled to inclusion in such registration, that are requested to be registered on included in such Registration Statement will be reduced registration, pro rata on the basis of the aggregate relative number of Registrable Securities owned at such time by each applicable HolderHolder seeking to participate in the registration; and (ii) second, and under after all such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement requested to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of included in clause (i) such time as all are included, the shares of the Company that can be sold without having the adverse effect referred to above. Any Registrable Securities covered by excluded or withdrawn from such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages underwriting shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily withdrawn from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)registration.
Appears in 2 contracts
Sources: Shelf Registration Rights Agreement (Despegar.com, Corp.), Investment Agreement (Despegar.com, Corp.)
Mandatory Registration. (a) On or prior to The Company shall prepare and, as soon as practicable, but in no event later than the Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission a SEC an Initial Registration Statement on Form S-3 (except if the Company is then ineligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on such other form available to register for resale the Registrable Securities as a secondary offering) covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Such Initial Registration Statement, and each other Registration Statement required to be filed pursuant to the terms of this Agreement, shall contain (except if otherwise required pursuant to written comments received from the SEC upon a review of such Registration Statement) the “Plan of Distribution” section in substantially the form attached hereto as Exhibit C (which may be modified to respond to comments, if any, provided by the SEC or to reflect any non-material changes). The Company shall use its best efforts to have such Initial Registration Statement, and each other Registration Statement required to be filed pursuant to the terms of this Agreement, declared effective by the SEC as soon as practicable, but in no event later than the applicable Effectiveness Deadline for such Registration Statement. Notwithstanding the registration obligations set forth in this Section 22(a), in if the event that staff of the SEC (ithe “Staff”) or the Company’s counsel determines SEC informs the Company that all such of the unregistered Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (Ai) inform each of the Holders holders thereof and, as applicable, file the Initial Registration Statement, or and use its commercially reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission SEC and/or (Bii) withdraw the Initial Registration Statement and file a new registration statement (a the “New Registration Statement”), in each either case covering the maximum number of such Registrable Securities permitted to be registered thereonby the SEC, on Form S-3 or such other form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this AgreementAgreement if applicable, if the opinion of the Company’s counsel Staff or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, unless otherwise directed in writing by an Investor as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will first be reduced by Registrable Securities represented by holders of Warrant Shares (applied, in the case that some Warrant Shares may be registered, to the Investors on a pro rata basis based on the basis of the aggregate total number of unregistered Warrant Shares held by such Investors) and second by Registrable Securities owned represented by each applicable HolderConvertible Shares (applied, and under in the case that some Convertible Shares may be registered, to the Investors on a pro rata basis based on the total number of unregistered Convertible Shares held by such circumstancesInvestors, the Company will not be subject to a determination by the payment Staff or SEC that certain Investors must be reduced first based on the number of Liquidated Damages in Section (cConvertible Shares held by such Investors). In the event If the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (Ai) or (Bii) above, the Company will use its commercially reasonable and customary efforts to file with the CommissionSEC, as promptly as allowed by Commission the Staff or SEC Guidance provided to the Company or to registrants of securities in generalSEC, one or more registration statements on Form S-3 or such other form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the each, an “Remainder Additional Registration StatementsStatement”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 2 contracts
Sources: Registration Rights Agreement (Grilled Cheese Truck, Inc.), Registration Rights Agreement (Trig Acquisition 1, Inc)
Mandatory Registration. (a) On At any time from and after the earliest of (i) one hundred eighty (180) days after the Closing Date (as defined in the Merger Agreement); (ii) the first date upon which the Company is eligible to register securities for reoffer and resale using a Registration Statement on Form S-3; and (iii) the date upon which the H▇▇▇▇ Employment Agreement (as defined in the Merger Agreement) is terminated by the Company without “Cause” or prior to by D▇▇▇▇▇ ▇. ▇▇▇▇▇ for “Good Reason” (as those terms are defined in the Filing DeadlineH▇▇▇▇ Employment Agreement), and for so long as the Shareholders or their respective transferees own beneficially or of record any Registrable Securities, the Company shall, following upon the written request (hereinafter a “notice”) of a holder or holders of a majority of the Registration Rights Purchasersthen outstanding Registrable Securities, and subject to the covenants, terms and conditions of Section 2(b) below, prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, Form S-1 or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration StatementForm S-3, as the case may be, under clauses the Securities Act, pursuant to Rule 415 under the Securities Act, covering the resale from time to time, of all of the shares of Registrable Securities held by such requesting holder or holders and the Company shall use its reasonable best efforts to have the Registration Statement declared effective as soon as practicable thereafter; provided, further, that in the event that additional Registrable Securities are issued after the Closing Date (A) or (B) aboveas defined in the Merger Agreement), the Company will use reasonable shall, upon the written request of a holder of Registrable Securities, subject to the covenants, terms and customary efforts to conditions of Section 2(b) below, prepare and file with the CommissionCommission such additional Registration Statements as may be necessary to cover the resale from time to time of any such additional Registrable Securities; provided, further, that the Company may, by notice to the requesting holder or holders, as promptly the case may be, delay such requested registrations for the Maximum Delay Period if and for so long as allowed by Commission or SEC Guidance the Delay Conditions exist. The Registration Statement shall contain the “Plan of Distribution” in substantially the form attached hereto as Exhibit B. The Company shall not be obligated pursuant to this Section 2 to effectuate more than one (1) registration for the benefit of the holders of Registrable Securities, except as provided for in this Section 2(a) with respect to additional Registrable Securities issued after the Closing Date (as defined in the Merger Agreement). In the event that Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall register the resale of the Registrable Securities on another such other available form of Registration Statement reasonably acceptable to the requesting holder or holders. Notwithstanding anything to the contrary contained herein, no request may be made under this Section 1.2:
(i) within one hundred eighty (180) days after the effective date of a Registration Statement filed by the Company or covering a primary underwritten public offering of securities of the Company under the Securities Act with an aggregate offering price (before underwriting commissions and expenses) of at least Ten Million Dollars ($10,000,000); provided that such offering was made in accordance with Section 6(a) below, or
(ii) during the period starting with the date sixty (60) days prior to registrants the Company’s estimated date of filing of, and ending on the date one hundred (180) days immediately following the effective date of any Registration Statement pertaining to securities of the Company (other than a registration of securities in generala Rule 145 transaction or with respect to an employee benefit plan), one or more registration statements on such form available to provided that the Company is actively employing in good faith all reasonable best efforts to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New cause such Registration Statement (to become effective and that the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Company’s estimate of the date of filing such Registration Statement without such ▇▇▇▇▇▇’s prior written consentis made in good faith.
(b) The Immediately following receipt of any notice pursuant to Section 2(a), the Company shall promptly notify all holders of Registrable Securities from whom such notice has not been received and, as soon thereafter as practicable, shall file a Registration Statement with the Commission and use all reasonable and customary best efforts to cause each Required have such Registration Statement to be declared effective by under the Commission Securities Act as soon as practicable, so as to permit the public sale in accordance with the method of disposition specified in such notice from requesting holders (such method of disposition shall be as requested by such holder or holders of a majority of Registrable Securities included in such notices received by the Company) of the number of shares of Registrable Securities specified in such notice (and in all notices received by the Company from other holders within twenty (20) days after the giving of such notice by the Company). If such method of disposition shall be an underwritten public offering, subject to the covenants, terms and conditions of Section 6 below, the Company shall designate the managing underwriter of such offering, following consultation and subject to the approval of the holders of Registrable Securities from whom notice has been received, which approval shall not be unreasonably withheld or delayed. All holders of Registrable Securities providing notice to the Company pursuant to the foregoing, must participate in such underwriting. The Company’s registration obligation hereunder shall be deemed satisfied only when a Registration Statement(s) covering all shares of Registrable Securities specified in notices received as aforesaid, for sale in accordance with the method of disposition specified by the requesting holders, shall have become effective and, with respect to the Initial Registration Statement or the New Registration Statementif such method of disposition is a firm commitment underwritten public offering, as applicable, no later than the Effectiveness Deadline, and all such shares shall have been sold pursuant thereto.
(c) The Company shall use all reasonable and customary efforts best efforts:
(i) to keep each Required the Registration Statement continuously effective under in order to permit the Prospectus to be usable by holders for resales of Registrable Securities Act until the earlier of (iA) such time as the sale under the Registration Statement of all the Registrable Securities registered thereunder and (B) all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased securities ceasing to be outstanding; or (iv) the date such Registrable Restricted Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, period being referred to herein as the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.; and
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) after the Initial Registration Statement or Effective Time and during the New Registration StatementEffectiveness Period, as applicable, promptly upon the request of any holder of Registrable Securities that is not declared effective by then an Electing Holder, to take any action reasonably necessary to enable such holder to use the Commission (or otherwise does not become effective) Prospectus for any reason on or prior to the Effectiveness Deadlineresales of Registrable Securities, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of any action necessary to identify such holder as a stop order, or the Company’s failure to update selling securityholder in the Registration Statement); provided, to remain continuously effective as to all Registrable Securities for which it is required to be effectivehowever, or (B) the Holders are not permitted to utilize the Prospectus therein to resell that nothing in this subparagraph shall relieve such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% holder of the aggregate purchase price paid by such Holder pursuant obligation to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel return a completed and signed Notice and Questionnaire to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)Section 3(a) hereof.
Appears in 2 contracts
Sources: Merger Agreement (Spectrum Sciences & Software Holdings Corp), Registration Rights Agreement (Spectrum Sciences & Software Holdings Corp)
Mandatory Registration. (ai) On Following the date on which any Converted Shares are issued pursuant to the Certificate or the SPA (each, an “Issuance Date”), the Company shall prepare, and, on or prior to the applicable Filing Deadline (as defined above) file with the SEC a Registration Statement (the “Mandatory Registration Statement”) on Form S-3 (or, if Form S-3 is not then available, on such form of Registration Statement as is then available to effect a registration of the Registrable Securities, subject to the consent of the Buyer, which consent will not be unreasonably withheld) covering the resale of the Registrable Securities issued on the applicable Issuance Date (as defined below) which Registration Statement, to the extent allowable under the Securities Act and the rules and regulations promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon exercise of or otherwise pursuant to the SPA or the Certificate to prevent dilution resulting from stock splits, stock dividends, stock issuances or similar transactions. The number of shares of Common Stock initially included in such Registration Statement shall be no less than the aggregate number of Converted Shares that are then issuable upon exercise of or otherwise pursuant to the conversion of the Preferred Shares issued on the Issuance Date, without regard to any limitation on the Buyer’s ability to convert the Preferred Shares into Common Stock, respectively. Each Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to (and subject to the approval of) the Buyer and its counsel prior to its filing or other submission.
(ii) If for any reason the SEC does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a)(i) above, or for any other reason any Registrable Securities are not then included in a Registration Statement filed under this Agreement, then the Company shall prepare, and, as soon as practicable but in no event later than the Additional Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission a SEC an additional Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 2 contracts
Sources: Registration Rights Agreement (Polomar Health Services, Inc.), Registration Rights Agreement (Polomar Health Services, Inc.)
Mandatory Registration. (a) On or prior to the Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, shall prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”); provided, that, the Company shall consider in good faith preparing and filing such Initial Registration Statement on or prior to the third (3rd) anniversary of the date hereof. Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use its reasonable and customary best efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering; provided, that in the case of (ii) above, prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its reasonable best efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Securities Act Rules Compliance and Disclosure Interpretation 612.09, or any successor thereto. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offeringoffering (and, in the case of clause (ii) above, notwithstanding that the Company used reasonable best efforts to reasonably advocate with the Commission for the registration of all or a greater number of Registrable Securities), the number of Registrable Securities to be registered on such Registration Statement will be reduced on a pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holdersuch person, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c2(c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use its reasonable and customary best efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇H▇▇▇▇▇’s prior written consent, which shall not be unreasonably withheld.
(b) The Company shall use its reasonable and customary best efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use its reasonable and customary best efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been publicly sold by the Holders; Holders or (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; agent (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”); provided, however, if the Company does not meet the eligibility requirements for filing on Form S-3 (or any successor registration statement form) at the time of filing of a Required Registration Statement, the Effectiveness Period shall not exceed 180 days following the Effective Date. The Company shall request effectiveness of a Required Registration Statement as of 4:00 5:00 p.m., Philadelphia New York City time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first each such Event DateDate and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% two percent (2.0%) of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c2(c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.51.0% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. The Liquidated Damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Event, except in the case of the first Event Date. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Tri-County Financial Group, Inc.), Registration Rights Agreement (Tri-County Financial Group, Inc.)
Mandatory Registration. Following the date Warrants are issued pursuant to the Facility Agreement (a) On the “Issuance Date”), the Company shall prepare, and, on or prior to the applicable Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and Deadline file with the Commission SEC a Registration Statement covering (the resale of all of the Registrable Securities not already covered by an existing and effective “Mandatory Registration Statement for an offering to be made Statement”) on a continuous basis pursuant to Rule 415 Form S-3 (or, if Rule 415 Form S-3 is not then available, on such form of Registration Statement as is then available for offers and sales to effect a registration of the Registrable Securities, by such other means subject to the consent of distribution the Buyer, which consent will not be unreasonably withheld) covering the resale of the Registrable Securities as issued on the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2applicable Issuance Date, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial which Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial extent allowable under the Securities Act and the rules and regulations promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as required by may become issuable upon exercise of or otherwise pursuant to the Commission and/or (B) withdraw the Initial Warrants to prevent dilution resulting from stock splits, stock dividends or similar transactions. The number of shares of Common Stock initially included in such Registration Statement and file a new registration statement shall be no less than the aggregate number of Warrant Shares that are then issuable upon exercise of or otherwise pursuant to the Warrants issued on the Issuance Date (a “New Registration Statement”as defined herein), without regard to any limitation on the Buyer’s ability to exercise the Warrants, respectively. The Company acknowledges that the number of shares initially included in each case covering the Registration Statement represents a good faith estimate of the maximum number of such Registrable Securities permitted to be registered thereon, on such form available shares issuable upon exercise of or otherwise pursuant to the Company to register for resale Warrants issued on the Registrable Securities as a secondary offeringIssuance Date and shall be amended if not sufficient. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular The Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by (and each applicable Holderamendment or supplement thereto, and under such circumstances, the Company will not each request for acceleration of effectiveness thereof) shall be provided to (and subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statementapproval, as the case may bewhich shall not be unreasonably withheld, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (iiof) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by Buyer and its counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement its filing or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)submission.
Appears in 2 contracts
Sources: Registration Rights Agreement (Array Biopharma Inc), Registration Rights Agreement (Array Biopharma Inc)
Mandatory Registration. The Company shall file with the United States Securities and Exchange Commission (a"SEC"), on the date which is on or before forty-five (45) On calendar days after the Closing Date (the "FILING DEADLINE") a Registration Statement on Form S-3 (or, if Form S-3 is not then available, on such form of Registration Statement as is then available to effect a registration of all of the Registrable Securities) covering the resale of the Warrant Shares and any Additional Investment Right Warrant Shares issued upon exercise of the Additional Investment Rights, which Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon exercise of the Warrants to prevent dilution resulting from stock splits, stock dividends or similar transactions (the "INITIAL REGISTRATION STATEMENT"). The Registrable Securities included in the Initial Registration Statement shall be registered on behalf of the Investors as set forth in Section 11(k) hereof. The Initial Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to the Initial Investors and their counsel at least two (2) Business Days prior to its filing or other submission. If for any reason (including, but not limited to, a determination by the Filing Deadlinestaff of the SEC that all or any portion of the Registrable Securities cannot be included in the Initial Registration Statement (an "SEC DETERMINATION")) the Initial Registration Statement declared effective by the SEC does not include all of the Registrable Securities (any such shares that are not included being the "UNCOVERED SHARES"), the Company shall, following the written request of the Registration Rights Purchasers, shall prepare and file with the Commission a Registration Statement covering SEC, as soon as practicable, but in any event prior to the resale of all tenth (10th) Business Day after becoming aware of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering existence of any Uncovered Shares (such date referred to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities herein as the Company may reasonably determine "UNCOVERED SHARE FILING DEADLINE"), either (a) an amendment (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i"UNCOVERED SHARES AMENDMENT") the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by effecting a registration of the Commission and/or Uncovered Shares or (Bb) withdraw a registration statement which registers the Uncovered Shares (the "UNCOVERED SHARES REGISTRATION STATEMENT"). The Uncovered Shares Amendment or the Uncovered Shares Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to the Initial Investors and their counsel at least concurrently with its filing or other submission. The Company shall use its reasonable efforts to cause each of the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to Uncovered Shares Amendment or the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Uncovered Shares Registration Statement to become effective as a secondary offering, soon as practicable after the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c)filing thereof. In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use its reasonable and customary efforts to cause each Required Registration Statement required to be declared filed pursuant to this Section 2(a) to become effective by the Commission as soon as practicable, andbut, with respect as to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section 2(a), in no event later than the one hundred and twentieth (c120th) in full within ten (10) Business Days calendar day after the date payableClosing Date, and as to any Uncovered Shares Amendment or Uncovered Shares Registration Statement, in no event later than the Company will pay interest on 60th day after the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)Uncovered Shares Filing Deadline.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Bam Entertainment Inc), Warrant Shares Registration Rights Agreement (Bam Entertainment Inc)
Mandatory Registration. (a) On or prior to the Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, prepare promptly and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadlinedate which is 30 days after the Closing Date, file with the SEC the Registration Statement covering the Registrable Securities which covers the resale by the Buyer or any of the Buyer's distributees of (A) a number of shares of Common Stock equal to at least the number of Common Shares issuable to the Buyer upon conversion of the Preferred Shares, determined at the Conversion Price which is applicable on the day the Registration Statement is filed with the SEC as Registrable Securities, and which Registration Statement shall state that, in accordance with Rule 416 under the 1933 Act, such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the Preferred Shares to prevent dilution resulting from stock splits, stock dividends or other dilutive events for which anti-dilution protection is provided in the Certificate of Designations.
(ii) Prior to the Initial Registration Statement or SEC Effective Date for the New Registration Statement, as applicablethe Company will not, is not declared effective by without the Commission (prior written consent of the Majority Holders, file or otherwise does not become effective) request the acceleration of any other registration statement filed with the SEC, and during any time subsequent to the SEC Effective Date when the Registration Statement for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all for use by any Investor for the resale of any Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to Company shall not file any other rights registration statement or any amendment thereto with the Holders may have hereunder SEC under the 1933 Act or under applicable law, on request the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% acceleration of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of any other registration statement previously filed with the Registration Statement SEC, other than (A) any registration statement on a timely basis results from the failure of such Holder to timely provide Form S-8 and (B) any registration statement or amendment which the Company with information requested by is required to file or as to which the Company is required to request acceleration pursuant to any obligation in effect on the date of execution and necessary to complete the Registration Statement in accordance with the requirements delivery of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)this Agreement.
Appears in 2 contracts
Sources: Subscription Agreement (Microcide Pharmaceuticals Inc), Subscription Agreement (Essential Therapeutics Inc)
Mandatory Registration. (a) On or prior to the Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, shall prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use its reasonable and customary best efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering; provided, that in the case of (ii) above, prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its reasonable best efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Securities Act Rules Compliance and Disclosure Interpretation 612.09, or any successor thereto. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offeringoffering (and, in the case of clause (ii) above, notwithstanding that the Company used reasonable best efforts to advocate with the Commission for the registration of all or a greater number of Registrable Securities), the number of Registrable Securities to be registered on such Registration Statement will be reduced on a pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c2(c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use its reasonable and customary best efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇Holder’s prior written consent.
(b) The Company shall use its reasonable and customary best efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use its reasonable and customary best efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been publicly sold by the Holders; Holders or (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; agent (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 5:00 p.m., Philadelphia New York City time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, Date unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, 144 (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first each such Event DateDate and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.02.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c2(c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. The Liquidated Damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Event, except in the case of the first Event Date. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 2 contracts
Sources: Securities Purchase Agreement (Pathfinder Bancorp, Inc.), Registration Rights Agreement (Pathfinder Bancorp, Inc.)
Mandatory Registration. (a) On or prior to the Filing Deadline, the i. The Company shall, following the written request of the Registration Rights Purchasers, prepare and shall file with the Commission SEC and use its reasonable best efforts to cause to become effective a Registration Statement covering the resale on Form S-3 (or, if Form S-3 is not then available, on such form of Registration Statement as is then available to effect a Registration of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales Securities) covering the resale of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine soon as practicable and in no event later than April [—], 2014 (the “Initial Registration Statement”). The Initial Registration Statement filed hereunder, to the extent allowable under the Securities Act, shall state that such Initial Registration Statement also covers such indeterminate number of additional shares of Class A Common Stock as may become issuable upon conversion of the Conversion Shares to prevent dilution resulting from stock splits, stock dividends or similar transactions.
ii. Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission SEC informs the Company that all such of the Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to shall promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or Purchasers and use its commercially reasonable and customary efforts to to
(a) file amendments to the Initial Registration Statement as required by the Commission SEC and/or (Bb) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each either case covering the maximum number of such Registrable Securities permitted to be registered thereonby the SEC, on Form S-3 or such other form available to the Company to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its commercially reasonable efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09 of the rules adopted under the Securities Act.
iii. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of on the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offeringoffering (and notwithstanding that the Company used commercially reasonable efforts to advocate with the SEC for the registration of all or a greater number of Registrable Securities), unless otherwise directed in writing by a holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will first be reduced by (a) Registrable Securities not acquired pursuant to the Purchase Agreement (whether pursuant to registration rights or otherwise) and, if Registrable Securities (as defined in the Stock Registration Rights Agreement) are included in such offering, Registrable Securities (as defined in the Stock Registration Rights Agreement) not acquired pursuant to the Stock Purchase Agreement and (b) second by Registrable Securities that are Shares and, if Registrable Securities (as defined in the Stock Registration Rights Agreement) are included in such offering, Registrable Securities (as defined in the Stock Registration Rights Agreement) that are shares issued pursuant to the Stock Purchase Agreement (applied, in the case that some shares may be registered, to all such holders on a pro rata basis based on the basis of the aggregate total number of Registrable Securities owned unregistered shares held by each applicable Holderall such holders, and under such circumstances, the Company will not be subject to a determination by the payment SEC that the shares of Liquidated Damages in Section (ccertain holders must be reduced first based on the number of shares held by such holders).
iv. In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) clause ii. above, the Company will use its commercially reasonable and customary efforts to file with the CommissionSEC, as promptly as allowed by Commission the SEC or the SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on Form S-3 or such other form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder .
v. In no event shall be named the Company include any securities other than Registrable Securities and Registrable Securities (as an “underwriter” defined in the Stock Registration Rights Agreement) on any Registration Statement (or enter into any agreement which would require the Company to include any securities other than the Registrable Securities and Registrable Securities (as defined in the Stock Registration Rights Agreement)) on any Registration Statement filed pursuant to this Section 2.A. without such ▇▇▇▇▇▇’s the prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by consent of the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all Purchasers holding at least a majority of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be then outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 2 contracts
Sources: Senior Secured Convertible Promissory Note Purchase Agreement (Kior Inc), Registration Rights Agreement (Kior Inc)
Mandatory Registration. (a) On The Company shall prepare, and, on or prior to thirty (30) days after the Filing Deadline, the Company shall, following the written request initial issuance date of the Registration Rights PurchasersShares (the "CLOSING DATE"), prepare and file with the Commission SEC a Registration Statement or Registration Statements (as is necessary) on Form S-3 (or, if such form is unavailable for such a registration, on such other form as is available for such a registration, subject to the consent of each Buyer and the provisions of Section 2(c), which consent will not be unreasonably withheld), covering the resale of all of the Registrable Securities not already covered by an existing and effective Securities, which Registration Statement(s) shall state that, in accordance with Rule 416 promulgated under the 1933 Act, such Registration Statement(s) also covers such indeterminate number of additional shares of Common Stock as may become issuable upon exercise of the Warrants to prevent dilution resulting from stock splits, stock dividends or similar transactions. Such Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to shall initially register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision that number of this Agreement, if the opinion shares of the Company’s counsel or any SEC Guidance sets forth a limitation Common Stock equal to 125% of the number of Registrable Securities permitted to be registered on a particular issuable as of the date immediately preceding the date the Registration Statement is initially filed with the SEC as if such date of registration was a secondary offeringdate on which the Warrants were exercised or exercisable, subject to adjustment as provided in Section 3(b). Such registered shares of Common Stock shall be allocated among the Investors pro rata based on the total number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis issued or issuable as of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files date that a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or relating to the New Registration Statement (resale of the “Remainder Registration Statements”)Registrable Securities is declared effective by the SEC. No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary its best efforts to cause each Required have the Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to SEC within ninety (90) days after the Initial Registration Statement or Closing Date (the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”"Scheduled Effective Date"). The Company shall request effectiveness of a Required If the Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, statement is not declared effective by the Commission (or otherwise does not become effective) for any reason SEC on or prior to before the Effectiveness Deadline, or (iii) after its Scheduled Effective Date, then for each consecutive thirty (A30) day period following the Scheduled Effective Date, each Investor shall, until such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or time as the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not declared effective or available by the SEC (all such payments to sell all Registrable Securitiesbe made in cash and nonrefundable on the first day of each thirty (30) day period), be entitled to an amount equal to the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses product of (i) through (v) above being referred to as an “Event,” andone percent, for purposes of clauses (i), multiplied by (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price Purchase Price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)Investor.
Appears in 2 contracts
Sources: Securities Purchase Agreement (NTN Communications Inc), Registration Rights Agreement (NTN Communications Inc)
Mandatory Registration. (ai) On The Company shall prepare and file with the SEC, as soon as possible after the Closing Date and no later than thirty (30) days following the Closing Date (the "Required Filing Date"), either a Registration Statement or prior an amendment to an existing Registration Statement, in either event registering for resale by the Filing DeadlineInvestors a sufficient number of shares of Common Stock for the Investors to sell the Registrable Securities (or such lesser number as may be required by the SEC, but in no event less than three hundred percent (300%) of that number of shares of the Company's Common Stock into which the relevant Debentures and all interest thereon through their respective Maturity Dates would be convertible at the time of filing of such Registration Statement (assuming for such purposes that all such Debentures had been eligible to be converted, and had been converted, into Conversion Shares in accordance with their terms, whether or not such accrual of interest, eligibility or conversion had in fact occurred as of such date) . The Registration Statement (W) shall include the Registrable Securities and (X) shall also state that, in accordance with Rule 416 and 457 under the Securities Act, it also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the Debentures to prevent dilution resulting from stock splits or stock dividends. The Company will use its reasonable best efforts to cause such Registration Statement to be declared effective on a date no later than ninety (90) days after the Closing Date (the "Required Effective Date").
(ii) If at any time (an "Increased Registered Shares Date"), the number of shares of Common Stock represented by the Registrable Securities, issued or to be issued as contemplated by the Transaction Agreements, exceeds the aggregate number of shares of Common Stock then registered, the Company shall, following within ten (10) business days after receipt of a written notice from any Investor, either (X) amend the written request of the Registration Rights Purchasers, prepare and file with the Commission a relevant Registration Statement covering filed by the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis Company pursuant to Rule 415 or, if Rule 415 is not available for offers and sales the preceding provisions of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in if such Registration Statement has not been declared effective by the event SEC at that time, to register one hundred ten percent (110%) of such Registrable Shares, computed as contemplated by the immediately preceding subparagraph (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement), or (iiY) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on has been declared effective by the basis SEC at that time, file with the SEC an additional Registration Statement (an "Additional Registration Statement") to register one hundred ten percent (110%) of the shares of Common Stock represented by the Registrable Shares, computed as contemplated by the immediately preceding subparagraph (i), that exceed the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the shares of Common Stock already registered. The Company will not be subject use its reasonable best efforts to cause the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial amended Registration Statement or files a New the Additional Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following possible and in no event later than (90) days after the Effective Increased Registered Shares Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 2 contracts
Sources: Securities Purchase Agreement (Flexxtech Corp), Registration Rights Agreement (Flexxtech Corp)
Mandatory Registration. (a1) On or prior The Company shall prepare and, as expeditiously as possible, but in no event later than the date which is 180 days after the Closing Date, file with the SEC a Registration Statement which covers the resale by the Buyer of (A) a number of shares of Common Stock equal to at least the number of Conversion Shares issuable to the Filing DeadlineBuyer upon conversion of the Preferred Shares, and one quarter-year of accrued and unpaid dividends on the Preferred Shares at the rate specified in the Certificate of Designations, determined at the Conversion Price which is applicable on the day the Registration Statement is filed with the SEC and (B) the number of Warrant Shares issuable upon exercise of the Warrant, and which Registration Statement shall state that, in accordance with Rule 416 under the 1933 Act, such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the Preferred Shares and exercise of the Warrant to prevent dilution resulting from stock splits, stock dividends or similar transactions. Notwithstanding the foregoing, if for any reason the SEC does not permit all of the Registrable Securities to be included in such Registration Statement to be sold by selling stockholders at prices that are “at the market”, then the Company shall, following the written request of the Registration Rights Purchasers, shall prepare and file with the Commission SEC a separate Registration Statement covering the resale of all of the with respect to any such Registrable Securities not already covered by an existing included with the initial Registration Statement, as expeditiously as possible, but in no event later than the date which is 45 days after the date on which the SEC shall indicate as being the first date such filing may be made.
(2) Prior to the SEC Effective Date, and effective during any time subsequent to the SEC Effective Date when the Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 any reason is not available for offers and sales use by any Investor for the resale of the any Registrable Securities, by such other means of distribution of Registrable Securities as the Company shall not file any other registration statement or any amendment thereto with the SEC under the 1933 Act or request the acceleration of the effectiveness of any other registration statement previously filed with the SEC, other than (A) any registration statement on Form S-8 and (B) any registration statement or amendment, inclusive of the Registration Statement on Form SB-2 of the Company currently on file, which the Company is required to file, or as to which the Company is required to request acceleration, pursuant to any obligation in effect on the date of execution and delivery of this Agreement or a transaction permitted under Section 5(i)(c).
(3) If a Registration Event occurs, then the Company will make payments to the Buyer as partial liquidated damages for the minimum amount of damages to the Buyer by reason thereof, and not as a penalty, at the rate of 2% per month of the Purchase Price paid by the Buyer pursuant to this Agreement (excluding the Purchase Price with respect to Shares already sold or which may reasonably determine be sold pursuant to Rule 144(k), for each calendar month of the Registration Default Period (the “Initial Registration Statement”pro rated for any period less than 30 days). Notwithstanding Each such payment shall be due and payable within five (5) days after the registration obligations set forth end of each calendar month of the Registration Default Period until the termination of the Registration Default Period and within five (5) days after such termination. Such payments shall be in this Section 2partial compensation to the Buyer, and shall not constitute the Buyer’s exclusive remedy for such events. The Registration Default Period shall terminate upon (u) the filing of the Registration Statement in the event that case of clause (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application definition of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing “Registration Event”; (v) the Initial Registration Statement, or SEC Effective Date in the case of clause (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application definition of Rule 415, be registered for resale as a secondary offering “Registration Event”; (w) the ability of the Buyer to effect sales pursuant to the Registration Statement in the case of clause (iii) of the definition of “Registration Event”; (x) the listing or inclusion and/or trading of the Common Stock on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration StatementTrading Market, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes case of clause (iv) of the date on which definition of “Registration Event”; (y) the delivery of such Allowable Grace Period is exceeded, being referred to as an shares or certificates in the case of clause (v) of the definition of “Event DateRegistration Event”), then ; and (z) in addition to any other rights the Holders may have hereunder or under applicable law, on case of the first such Event Dateevents described in clauses (ii) and (iii) of the definition of “Registration Event”, the Company earlier termination of the Registration Period and in each such case any Registration Default Period that commenced by reason of the occurrence of such event shall pay to each Holder an amount in cash, terminate if at the time no other Registration Event is continuing. The amounts payable as partial liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages this paragraph shall be payable (i) if as in lawful money of the relevant Event DateUnited States. Amounts payable as partial liquidated damages hereunder shall cease when the Buyer no longer holds the Preferred Shares, the Warrant or Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)Securities.
Appears in 2 contracts
Sources: Subscription Agreement (Dwango North America Corp), Subscription Agreement (Dwango North America Corp)
Mandatory Registration. The Company shall prepare and, as soon as practicable but in no event later than the later of (ax) On four business days after the filing of the Form 10-K for the calendar year ended December 31, 2003 or prior to (y) March 30, 2004 (the "Filing Deadline"), the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission a SEC the Registration Statement on Form S-3 covering the resale of all of the Registrable Securities not already covered by an existing and effective Securities. In the event that Form S-3 is unavailable for such a registration, the Company shall use such other form as is available for such a registration, subject to the provisions of Section 2(d). The Registration Statement prepared pursuant hereto shall register for an offering resale at least 4,662,322 shares of Common Stock, subject to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities adjustment as the Company may reasonably determine (the “Initial Registration Statement”provided in Section 2(e). Notwithstanding The Company shall use its best efforts to have the registration obligations set forth Registration Statement declared effective by the SEC as soon as practicable, but in this Section 2, no event later than the date which is (i) in the event that the Registration Statement is not subject to a full review by the SEC, seventy-five (i75) days after the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, Closing Date or (ii) in the Commission informs event that the Company that all Registration Statement is subject to a full review by the SEC, 60 days after the date on which the Registration Statement is initially filed with the SEC. Until such Registrable Securities cannot, time as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statementRegistration Statement is declared effective by the SEC, the Company agrees to promptly (A) inform each of shall not file with the Holders thereof and, as applicable, file SEC any other registration statement under the Initial Registration Statement, or use reasonable and customary efforts to file amendments 1933 Act with respect to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number resale or initial issuance of such Registrable Securities permitted to be registered thereon, on such form available to the any Company to register for resale the Registrable Securities as a secondary offeringsecurities. Notwithstanding the foregoing or any other provision of this Agreement, if if, following the opinion filing of the Company’s counsel or any SEC Guidance sets forth a limitation registration statement to register all of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offeringwith the SEC, the SEC determines that the Company cannot include certain of the Registrable Securities in that registration statement, the number of Registrable Securities to be registered on such included in the Registration Statement will shall be reduced pro rata on accordingly. To the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under extend that such circumstances, the Company will registration statement does not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by for the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payableforegoing reason, the Company will pay interest on promptly register the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness balance of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement Registrable Securities in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)Section 2(e) below.
Appears in 1 contract
Sources: Registration Rights Agreement (Hemispherx Biopharma Inc)
Mandatory Registration. (a) On The Company shall prepare, and, on or prior ---------------------- to sixty (60) days after the Filing Deadline, the Company shall, following the written request initial issuance date of the Registration Rights PurchasersPreferred Stock (the "Closing Date"), prepare and file with the Commission SEC a Registration Statement or Registration Statements (as is necessary) on Form S-3 (or, if such form is unavailable for such a registration, on such other form as is available for such a registration, subject to the consent of each Buyer and the provisions of Section 2(c), which consent will not be unreasonably withheld), covering the resale of all of the Registrable Securities not already covered by an existing and effective Securities, which Registration Statement(s) shall state that, in accordance with Rule 416 promulgated under the 1933 Act, such Registration Statement(s) also covers such indeterminate number of additional shares of Common Stock as may become issuable to prevent dilution resulting from stock splits, stock dividends or similar transactions. Such Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to shall initially register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision that number of this Agreement, if the opinion shares of the Company’s counsel or any SEC Guidance sets forth a limitation of Common Stock equal to the number of Registrable Securities permitted to be registered on a particular issuable as of the date immediately preceding the date the Registration Statement is initially filed with the SEC as if such date of registration was a secondary offeringdate on which the Preferred Stock was converted into Common Stock pursuant to the terms of the Certificate of Designation, subject to adjustment as provided in Section 5(b). Such registered shares of Common Stock shall be allocated among the Investors pro rata based on the total number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis issued or issuable as of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files date that a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or relating to the New Registration Statement (resale of the “Remainder Registration Statements”)Registrable Securities is declared effective by the SEC. No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary its best efforts to cause each Required have the Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement SEC within one hundred and fifty (1150) Business Day of days after the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Closing Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 1 contract
Mandatory Registration. The Company shall use its best efforts to prepare, and, on or before April 1, 1999 (a) On or prior to the Filing Deadlinesuch date of filing, the Company shall"Initial Filing Date"), following the written request of the Registration Rights Purchasers, prepare and file with the Commission SEC a Registration Statement or Registration Statements (as is necessary) on Form S-3 (or, if such form is unavailable for such a registration, on such other form as is available for such a registration), covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution amount of Registrable Securities identified below, which Registration Statement(s), to the extent allowable under the 1933 Act and the rules promulgated thereunder (including Rule 416), shall state that such Registration Statement(s) also covers such indeterminate number of additional shares of Common Stock as may become issuable (i) upon conversion of the Company may reasonably determine Shares or exercise of the Warrants to prevent dilution resulting from stock splits, stock dividends or similar transactions, (ii) by reason of changes in the “Initial Registration Statement”). Notwithstanding exercise price of the registration obligations Warrants in accordance with the terms thereof, and (iii) by reason of the exercise by Buyer of its right of first refusal as set forth in Section 5 of the Stock Purchase Agreement. The number of shares of Common Stock initially included in such Registration Statement(s) shall be no less than 3,000,000 shares of Common Stock that are issuable upon the Initial Filing Date and the exercise of Warrants in accordance with their terms. The Company shall use its best efforts to have such Registration Statement(s) declared effective by the SEC within ninety (90) days after the filing of the Registration Statement. The Company further undertakes to take all steps necessary to ensure that a Registration Statement is or Registration Statements are effective during the Registration Period (as defined below) with respect to all Registrable Securities and the resale thereof at all times during the Registration Period. Any Registration Statement(s) referred to in this Section 22(a) (and each amendment or supplement thereto, in the event that (iand each request for acceleration of effectiveness thereof) shall be provided to and approved by Buyer and its legal counsel prior to the Company’s counsel determines that all 's filing or other submission (such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted approval not to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, unreasonably withheld) and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold document in a transaction in which the applicable rights under this Agreement are not assigned pursuant form to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)objects.
Appears in 1 contract
Mandatory Registration. (a) On The Company shall prepare, and, on or prior to the Filing Deadline, date (the Company shall, following "FILING DATE") which is one hundred twenty (120) days after the written request date of the Registration Rights Purchaserstermination of the Merger (the "TERMINATION DATE") subject to and in connection with the provisions of the Merger Agreement, prepare and file with the Commission SEC a Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 Form S-3 (or, if Rule 415 Form S-3 is not then available, on such form of Registration Statement as is then available for offers and sales to effect a registration of the Registrable Securities, by such other means subject to the consent of distribution of Registrable Securities as E-Stamp, which consent will not be unreasonably withheld) covering the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result resale of the application of Rule 415Registrable Securities, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial which Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by extent allowable under the Commission and/or 1933 Act and the rules and regulations promulgated thereunder (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”including Rule 416), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on shall state that such Registration Statement will be reduced pro rata on the basis of the aggregate also covers such indeterminate number of Registrable Securities owned by additional shares of Common Stock as may become issuable to prevent dilution resulting from stock splits, stock dividends or similar transactions. The Registration Statement (and each applicable Holderamendment or supplement thereto, and under such circumstances, the Company will not each request for acceleration of effectiveness thereof) shall be provided to (and subject to the payment reasonable approval of) E-Stamp and its counsel prior to its filing or other submission; PROVIDED, HOWEVER, that the "Selling Stockholder" and "Plan of Liquidated Damages in Section (c). In Distribution" sections of the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file shall comply in all material respects with the Commission, as promptly as allowed information provided by Commission or SEC Guidance provided the Investors pursuant to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”)Section 4(a) hereof. No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use its reasonable and customary best efforts to cause each Required obtain effectiveness of the Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no but in any event not later than one hundred eighty (180) days after the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Termination Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 1 contract
Mandatory Registration. If, on or after the Lockup Period but prior to the Registration Rights Expiration Point, and provided that at least one year has elapsed since the most recent Registration Request (as defined below), (a) On or prior to the Filing Deadline, the Company shall, following the written request Holders of the Registration Rights Purchasers, prepare and file with the Commission a Registration Statement covering the resale of all at least twenty-five percent (25%) of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering theretofore registered pursuant to this SECTION 5, so long as the aggregate gross proceeds to be made on a continuous basis pursuant received from such proposed offering is expected to Rule 415 orbe not less than $500,000, if Rule 415 is not available for offers and sales or (b) Holders of at least fifty percent (50%) of the Registrable SecuritiesSecurities not theretofore registered pursuant to this SECTION 5, by so long as the aggregate gross proceeds to be received from such other means proposed offering is expected to be not less than $1,000,000, request in writing that the Company register under the Securities Act at least 25% of distribution the Registrable Securities not theretofore registered pursuant to this SECTION 5 (a "Registration Request"), the Company shall promptly give written notice of such Registration Request to all holders of Registrable Securities and will, as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding expeditiously as possible, use its best efforts to effect the registration obligations set forth in this Section 2, in under the event that Securities Act of (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result which the Company has been requested to register for disposition in accordance with the intended method of disposition described in the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or Request and (ii) the Commission informs Registrable Securities of any Holder that elects to join in the Registration Request within twenty (20) days after receipt of the above written notice from the Company. The Company may include in any such registration (x) similar securities held by other parties with registration rights and (y) similar securities that the Company that all such Registrable Securities cannotdesires to register; provided, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”)that, in each case covering the maximum number of connection with an underwritten offering, such Registrable Securities permitted additional similar securities shall be reduced to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreementnumber, if any, that in the reasonable opinion of the Company’s counsel or any SEC Guidance sets forth a limitation managing underwriters of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary such offering, would not adversely affect the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement marketability or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).offering
Appears in 1 contract
Sources: Stock Purchase Agreement (Chaney R & Partners 1993 Lp)
Mandatory Registration. (a) On or prior 2.1.1 The Company shall use its best efforts to the Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission SEC within forty-five (45) calendar days from the date of the final Closing Date (the “Required Filing Date”), a Registration Statement covering on Form S-3 (or, if Form S-3 is not available to the resale Company, on such other form is then available to effect a registration of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering Securities; provided, that the Company shall convert such other form to be made Form S-3, or file a replacement registration statement on a continuous basis pursuant to Rule 415 orForm S-3 promptly after the first date on which it meets such requirement), if Rule 415 is not available for offers and sales covering the resale of 100% of the Registrable Securities, by which Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder, shall state that such other means Registration Statement also covers such indeterminate number of distribution additional shares of Registrable Securities Common Stock as may become issuable upon exercise of the Company may reasonably determine Warrants or exercise of the Placement Agent Warrants pursuant to provisions to prevent dilution resulting from stock splits, stock dividends or similar transactions (the “Initial Mandatory Registration Statement”). Notwithstanding The Mandatory Registration Statement shall contain, unless otherwise required by applicable law or the registration obligations SEC, the “Selling Shareholders” and “Plan of Distribution” section of the Prospectus in a form reasonably satisfactory to the Investors based upon information provided by the selling shareholders. The Registrable Securities included in the Mandatory Registration Statement shall be registered on behalf of the Investors set forth on Schedule A hereof. The Mandatory Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to the Investors and their counsel at least two (2) business days prior to its filing or other submission; such notice to specify the securities to be registered, the proposed numbers and amounts thereof and the date thereafter by which the Company must receive the Investors’ written indication if any Investor does not wish to include their Registrable Securities in such Registration Statement and advising the Investors of their rights under this Section 2. The Company shall file the Mandatory Registration Statement and cause all of the Registrable Securities (unless an Investor has indicated otherwise with respect to all or any portion of such Investor’s Registrable Securities pursuant to the preceding sentence) to be registered under the Securities Act, in connection with the event that sale or other disposition by the Investors of the Registrable Securities so registered. The Company shall use its best efforts (i) to cause the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Mandatory Registration Statement, as amended, or to become effective within one hundred and fifty (150) days from the New Registration Statement Required Filing Date (the “Remainder Registration StatementsEffectiveness Deadline”). No Holder shall be named as an “underwriter” in any ; and (ii) to maintain the effectiveness of the Mandatory Registration Statement without for a period of two (2) years from the date such ▇▇▇▇▇▇’s prior written consentregistration statement is initially declared effective.
(b) The Company shall use reasonable and customary efforts to cause each Required 2.1.2 If the Mandatory Registration Statement to be has not been filed by the Required Filing Date and/or declared or ordered effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and the Company shall use reasonable and customary efforts pay each Investor liquidated damages in an amount equal to keep each Required Registration Statement continuously effective under 1% of the Original Purchase Price paid by such Investor for the Securities Act per month (pro-rata, in each case, for partial months), which payments shall be payable at the end of each calendar month until the earlier of (i) such time as all of the Registrable Securities covered by such Required date upon which the Mandatory Registration Statement have been sold by the Holders; is declared effective, or (ii) the date that on which all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights payments under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder 2.1.2 reach an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.010% of the aggregate purchase price paid by such Holder pursuant gross proceeds of the Offering. This payment may be made, at the election of the Company, in cash or in additional shares of Series C Preferred Stock valued at the Original Purchase Price (assuming that no value is ascribed to the Purchase Agreement for any Registrable Securities held by such Holder on Warrants), provided that there are a sufficient number of authorized, but unissued shares of Common Stock into which the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities Series C Preferred Stock may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)convert.
Appears in 1 contract
Sources: Registration Rights Agreement (Synovics Pharmaceuticals)
Mandatory Registration. (ai) On Following each date on which any Warrants are issued pursuant to the Facility Agreement (each, an “Issuance Date”), the Company shall prepare, and, on or prior to the applicable Filing Deadline (as defined above) file with the SEC, or have on file with the SEC, a Registration Statement (the “Mandatory Registration Statement”) on Form S-3 (or, if Form S-3 is not then available, on such form of Registration Statement as is then available to effect a registration of the Registrable Securities, subject to the consent of the Buyers, which consent will not be unreasonably withheld), which may include a shelf registration statement on Form S-3, covering the resale of the Registrable Securities issued on the applicable Issuance Date which Registration Statement, to the extent allowable under the Securities Act and the rules and regulations promulgated thereunder (including Rule 416), and to the extent necessary, shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon exercise of or otherwise pursuant to the Warrants to prevent dilution resulting from stock splits, stock dividends, stock issuances or similar transactions. If any Registration Statement required to be filed is filed pursuant to Rule 415(a)(1)(x) of the Securities Act, the Company may include in such Registration Statement the registration of shares of Common Stock or other securities for sale by the Company for its own account. The number of shares of Common Stock initially included in such Registration Statement, or an applicable prospectus supplement thereto if the shelf registration statement on Form S-3 does not otherwise identify a specific number of shares of Common Stock to be registered, shall be no less than the aggregate number of Warrant Shares that are then issuable upon exercise of or otherwise pursuant to the Warrants issued on the Issuance Date, without regard to any limitation on the Buyers’ ability to exercise the Warrants, respectively. Each Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to (and subject to the approval, which shall not be unreasonably withheld, of) the Buyers and their counsel prior to its filing or other submission. Notwithstanding anything herein to the contrary, to the extent the Company is eligible to use Instruction I.D. to Form S-3, any Registration Statement or post-effective amendment to a Registration Statement required to be filed hereunder shall be filed pursuant to Instruction I.D. of Form S-3.
(ii) If for any reason the SEC does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a)(i) above, or for any other reason any Registrable Securities are not then included in a Registration Statement filed under this Agreement, then the Company shall prepare, and, as soon as practicable but in no event later than the Additional Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission a SEC an additional Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)Act.
Appears in 1 contract
Sources: Registration Rights Agreement (MAKO Surgical Corp.)
Mandatory Registration. (ai) On or prior to the Filing Deadline, the The Company shall, following the written request of the Registration Rights Purchasers, shall prepare and file with the Commission SEC, as soon as practicable but not later than 40 days after the Closing (the "Required Filing Date"), an amendment to an existing Registration Statement, or a Registration Statement covering in either event registering for resale by the resale Investor a sufficient number of shares of Common Stock for the Investors to sell all of the Registrable Securities not already covered by an existing and effective Securities. The Registration Statement for an offering shall also state that, in accordance with Rules 416 and 457 under the Securities Act, it also covers such indeterminate number of additional shares of Common Stock as may become issuable to prevent dilution resulting from stock splits, or stock dividends. The Company will use its reasonable best efforts to cause such Registration Statement to be made declared effective on a continuous basis pursuant date (the "Initial Required Effective Date") which is no later than the earlier of (Y) five (5) days after oral or written notice by the SEC that it may be declared effective or (Z) the Required Effective Date.
(ii) In addition to Rule 415 orthe registration rights referred to in the preceding provisions of Section 2(a), if Rule 415 is not available for offers and sales the Investor shall have piggy-back registration rights with respect to the Registrable Securities then held by the Investor, subject to the conditions set forth below. If, at any time after the date hereof, the Company participates (whether voluntarily or by reason of an obligation to a third party) in the registration of any shares of the Registrable SecuritiesCompany's stock (other than a registration on Form ▇-▇, by ▇▇▇▇ ▇-▇ or any other similar forms), the Company shall given written notice thereof to the Investor and the Investor shall have the right, exercisable within ten (10) business days after receipt of such other means notice, to demand inclusion of distribution all or a portion of the Investor's Registrable Securities as in such registration statement. If the Investor exercises such election, the Registrable Securities so designated shall be included in the registration statement at no cost or expense to the Investor (other than any costs or commissions which would be borne by the Investor under the terms of the Registration Rights Agreement); provided, however, that if there is a managing underwriter of the offering of shares referred to in registration statement and such managing underwriter advises the Company may reasonably determine (in writing that the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, number of shares proposed to be included in the event that (i) offering will have an adverse effect on its ability to successfully conclude the Company’s counsel determines that all such Registrable Securities cannotoffering and, as a result of the application of Rule 415result, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted shares to be registered on a particular Registration Statement as a secondary offeringincluded in the offering is to be reduced, the number of Registrable Securities of the Investor which were to be registered on included in the registration (before such Registration Statement reduction) will be reduced pro rata on rate with the basis number of shares included for all other parties whose shares are being registered. The Investor's rights under this Section shall expire at such time as the Investor can sell all of the aggregate number of Registrable Securities owned under Rule 144 without volume or other restrictions or limit.
(i) [RESERVED]
(ii) If the Registration Statement covering the Registrable Securities is not filed by each applicable Holderthe Required Filing Date, and under such circumstancesor declared effective by the Required Effective Date, or if there is a Restricted Sale Date, other than a Permitted Suspension Period, within ninety (90) days after the effective date of the Registration Statement, then the Company will not be subject make payments to the payment of Liquidated Damages Investor in such amounts and at such times as shall be determined pursuant to this Section 2(b).
(c). In iii) The amount (the event "Periodic Amount") to be paid by the Company amends to the Initial Registration Statement Investor shall be determined as of each Computation Date (as defined below) and such amount shall be equal to the Periodic Amount Percentage (as defined below) of the Purchase Price for the Common Stock for the period from the date following the Required Effective Date or files a New Registration StatementRestricted Sale Date, as the case may be, under clauses to the first relevant Computation Date, and thereafter to each subsequent Computation Date. The "Periodic Amount Percentage" means (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or Required Effective Date, one percent (1%) of the New Registration StatementPurchase Price of the Common Stock for the first, as applicable, no later than second and third Computation Dates and two percent (2%) of the Effectiveness DeadlinePurchase Price of the Common Stock to each Computation Date thereafter, and shall use reasonable and customary efforts (b) with respect to keep each Required Registration Statement continuously effective under a Restricted Sale Date other than a Permitted Suspension Period, two percent (2%)of the Securities Act until the earlier of (i) such time as all Purchase Price of the Registrable Securities covered by such Required Registration Statement have been Common Stock, not previously sold by the Holders; (ii) Investor after the date that all Registrable Securities covered by such Required Registration Statement may be sold by Restricted Sale Date to each Computation Date thereafter. Anything in the Holders without volume or manner preceding provisions of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; this paragraph (iii) to the date such Registrable Securities have ceased contrary notwithstanding, after the relevant Effective Date the Purchase Price shall be deemed to be outstanding; or (iv) refer to the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file sum of the effectiveness Held Shares Value. By way of a Registration Statement within one (1) Business Day illustration and not in limitation of the Effective Dateforegoing, unless already available on if the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not timely filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not and declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) 165 days after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Closing Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty Periodic Amount will aggregate five (“Liquidated Damages”), equal to 3.0% 5%) percent of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable Price (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non1% days 90-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period120; 2% dated 121-150; 2% days 151-165). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)[depends upon required filing date].
Appears in 1 contract
Sources: Registration Rights Agreement (Semotus Solutions Inc)
Mandatory Registration. (a) On or prior to before the Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, shall prepare and file with the Commission a Registration Statement on Form S-3 as a "shelf" registration statement under Rule 415 covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation at least 175% of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number shares of Registrable Securities then issuable on conversion of the Convertible Securities and exercise of the Warrants then outstanding (assuming for such purpose that such conversion or exercise were to be registered occur as of the date such filing is made and without regard to any restriction or limitation on such conversion or exercise). The Registration Statement shall state, to the extent permitted by Rule 416 under the Securities Act, that it also covers such indeterminate number of shares of Common Stock as may be required to effect conversion of the Convertible Securities or exercise of the Warrants, as the case may be, to prevent dilution resulting from stock splits, stock dividends or similar events.
(b) The Company shall use its best efforts to cause the Registration Statement to become effective as soon as practicable following the filing thereof, 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 (but in no event later than ten (10) Business Days following the Company's receipt thereof), and shall submit to the Commission, within one (1) Business Day after the Company learns that no review of the Registration Statement will be reduced pro rata made by the staff of the Commission or that the staff of the Commission has no further comments on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses a request for acceleration of the effectiveness of the Registration Statement to a time and date not later than forty eight (48) hours after the submission of such request, and maintain the effectiveness of the Registration Statement until the earlier to occur of (i) the date on which all of the Registrable Securities have been sold pursuant to the Registration Statement and (ii) the date on which all of the remaining Registrable Securities (in the reasonable opinion of counsel to the Holders of (x) the number of outstanding Registrable Securities plus (y) the number of Registrable Securities into which the Convertible Securities and Warrants then outstanding are convertible or exercisable, as the case may be (at the conversion or exercise price then in effect and without regard to any limitation on such conversion or exercise that may otherwise apply)) may be immediately sold to the public without registration and without regard to the amount of Registrable Securities which may be sold by a Holder thereof at a given time (the "Registration Period").
(c) If (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (is not filed on or before the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be Filing Deadline or declared effective by the Commission as soon as practicable, and, with respect to on or before the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until ninetieth (90th) day following the earlier to occur of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (iix) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in on which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to and (y) the Filing Deadline, (iiB) after the Initial Registration Statement or the New Registration Statement, as applicable, is not has been declared effective by the Commission (or otherwise does Commission, sales of Registrable Securities cannot become effective) be made by a Holder under the Registration Statement for any reason on or prior not within the exclusive control of such Holder (other than such Registrable Securities as are then freely saleable pursuant to Rule 144(k) under the Effectiveness DeadlineSecurities Act), or (iiiC) after its Effective Date, the Common Stock is not listed and freely tradeable on the Nasdaq National Market System or the New York Stock Exchange (each of (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (vC) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to herein as an “a "Default Event,” and, for purposes of clauses (i"), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% the lesser of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement (x) two percent (2%) per thirty calendar day period (prorated for any Registrable Securities period of less than thirty calendar days) and (y) the highest rate permitted by applicable law, times either (i) the unpaid principal of and accrued interest on the Debentures held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken the aggregate Liquidation Preference (as defined in the Articles of Amendment) of the Preferred Shares held by such Holder, accruing daily and compounded monthly, from the date on which a Default Event occurs until the date on which such Default Event and any and all other Default Events have been cured and are no longer continuing. The amounts paid or payable by the Company hereunder shall be in addition to any other remedies available to each Holder at law or in equity or pursuant to the terms hereof, the Securities Purchase Agreement, the Debentures, the Articles of Amendment or otherwise. Payments of such amounts pursuant hereto shall be made in immediately available funds within five (iii5) Business Days after the end of each period that gives rise to such obligation, provided that, if any such period extends for more than thirty (30) days, payments shall be made at the end of each thirty-day period.
(d) In the event that (A) the Registration Statement is not declared effective by the one hundred and twentieth (120th) day following the earlier to occur of (x) the date on which the Registration Statement is filed with the Commission and (y) the Filing Deadline, (B) after the Registration Statement has been declared effective by the Commission, sales of Registrable Securities cannot be made by a Holder in under the event it is unable to lawfully sell Registration Statement for any reason not within the exclusive control of its such Holder (other than such Registrable Securities as are then freely saleable pursuant to Rule 144(k) under the Securities Act), (includingC) the Common Stock is not listed and freely tradeable on the Nasdaq National Market System or the New York Stock Exchange, without limitationor (D) the Company breaches, in any material respect, any material covenant or other material term or condition of this Agreement, the event Securities Purchase Agreement, the Debentures, the Articles of Amendment or the Warrants or any other agreement, document, certificate or other instrument delivered in connection with the transactions contemplated hereby or thereby, and such breach continues for a Grace Period exceeds the length period of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after written notice thereof to the Company from a Holder (each event described in clause (A), (B), (C) or (D) being hereinafter referred to as a "Repricing Event"), in addition to the amounts which may be payable pursuant to paragraph 2(c) above (and any other remedies available to the Holders), the Conversion Price (as defined in the Debentures or Articles of Amendment, as the case may be) for any conversion of Convertible Securities occurring on a Conversion Date (as defined in the Articles of Amendment) following the occurrence of such Repricing Event shall be deemed to be equal to the least of (i) the lowest Conversion Price (as defined in the Debentures of the Articles of Amendment, as the case may be) that would have applied had such conversion occurred during the period between the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at which a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from Repricing Event occurs and the date on which such Liquidated Damages Repricing Event and any and all other Repricing Events have been cured and are due until such amountsno longer continuing, plus all such interest thereon, are paid in full. With respect to a Holder, (ii) the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder average of the ten (10) lowest Closing Bid Prices (as defined in the event Debentures or Articles of Amendment, as the case may be) that occurred during the Company’s failure to obtain period between the effectiveness of date on which a Repricing Event occurs and the Registration Statement date on a timely basis results from which such Repricing Event and any and all other Repricing Events have been cured and are no longer continuing and (ii) the failure of Conversion Price that would otherwise be in effect on such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)Conversion Date.
Appears in 1 contract
Sources: Registration Rights Agreement (Alydaar Software Corp /Nc/)
Mandatory Registration. (a) On or prior to the Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, shall prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 22 of the Agreement, in the event that (i) the Company’s legal counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees promptly to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use its reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on the Commission’s Form S-3 or, if Form S-3 is not available for such purpose, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s legal counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use its reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇Holder’s prior written consent.
(b) The Company shall use its reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use its reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act (excluding during an Allowable Grace Period) until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold publicly by the Holders; Holders or (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; agent (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company promptly shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Registered Securities (other than during an Allowable Grace Period), or (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, Period (any such failure or breach in clauses (i) through (viv) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (viii), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first each such Event DateDate and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder Holder, pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), an amount equal to 3.0% of $500.00 per day on which the aggregate purchase price paid by such Holder pursuant to Company is not in compliance with the Purchase Agreement for any Registrable Securities held by such Holder on Filing Deadline, the Event DateEffectiveness Deadline and the Effectiveness Period. The parties agree that notwithstanding anything to the contrary herein or in the Purchase AgreementFunding or Merger Agreement(s), no Liquidated Damages shall be payable (i) to a Holder if as of the relevant Event Date, the all Registrable Securities held by it may be sold by the Holders Holder without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c2(c) of the Agreement in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.51.0% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. The Liquidated Damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Event, except in the case of the first Event Date. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in accordance with Section 3(k) of the Agreement in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder timely to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)Act.
Appears in 1 contract
Sources: Registration Rights Agreement (Brickell Biotech, Inc.)
Mandatory Registration. The Company shall prepare and, as soon as reasonably practicable, but in no event later than the 60th day following the Closing Date (a) On or prior to the “Filing Deadline”), the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission SEC, a Registration Statement covering registration statement on Form S-1 or such other form under the resale of Securities Act as is then available to the Company (including the prospectus, amendments and supplements to such registration statement or prospectus, including pre- and post-effective amendments, all of the Registrable Securities not already covered exhibits thereto and all material incorporated by an existing and effective Registration Statement for an offering reference or deemed to be made on a continuous basis pursuant to Rule 415 orincorporated by reference, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2any, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering providing for the maximum resale from time to time by the Investors of any and all Registrable Securities. Notwithstanding anything to the contrary contained herein, the Filing Deadline shall be automatically extended by a number of such Registrable Securities permitted days necessary to be registered thereon, on such form available address any comments to the Registration Statement by any Investor’s counsel, which comments have required that the Company to register for resale not file the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages set forth in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or clause (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Section 4.7(c)(iii). The Registration Statement shall contain (except as otherwise directed by the Investors) the “Remainder Registration Statements”). No Holder shall be named Selling Stockholders” and “Plan of Distribution” sections in substantially the form attached hereto as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) Annex B. The Company shall agrees to use its reasonable and customary best efforts to cause each Required the Registration Statement to be declared effective by the Commission SEC as soon as practicablepracticable following such filing, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, but in no event later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (ix) such time as all of the Registrable Securities covered 150th day following the Closing Date or (y) the fifth day following the date on which the Company is notified (orally or in writing, whichever is earlier) by such Required the SEC that the Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may will not be sold by the Holders without volume reviewed or manner of sale restrictions under Rule 144, as determined by counsel will not be subject to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) further review (such time perioddate, the “Effectiveness PeriodDeadline”). The Company shall request promptly, and in any event within three (3) Trading Days, notify the Investors of the effectiveness of a Required the Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading DayStatement. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain maintain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the for so long as there are any Registrable Securities Act (in which case the Effectiveness Deadline would be extended outstanding, with respect to such Registrable Securities held by such Registration Rights Purchaser)Securities.
Appears in 1 contract
Sources: Stock Purchase and Registration Rights Agreement (GlassesOff Inc.)
Mandatory Registration. (a) On The Company shall prepare, and, on or prior to April 30, 2007 (the “Filing DeadlineDate”), the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission SEC a Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 Form S-3 (or, if Rule 415 Form S-3 is not then available, on such form of Registration Statement as is then available for offers and sales to effect a registration of the Registrable Securities, by such other means subject to the consent of distribution the Initial Investors, which consent will not be unreasonably withheld) covering the resale of the Registrable Securities as underlying the Company may reasonably determine (Notes and Warrants issued or issuable pursuant to the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2Securities Purchase Agreement, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial which Registration Statement, to the extent allowable under the 1933 Act and the rules and regulations promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of or (ii) otherwise pursuant to the Commission informs the Company that all such Registrable Securities cannot, as a result Notes and exercise of the application Warrants to prevent dilution resulting from stock splits, stock dividends or similar transactions. The number of Rule 415, shares of Common Stock initially included in such Registration Statement shall be registered for resale as a secondary offering on a single registration statement, no less than an amount equal to two (2) times the Company agrees to promptly (A) inform each sum of the Holders thereof andnumber of Conversion Shares that are then issuable upon conversion of the Notes and Additional Notes (based on the Variable Conversion Price as would then be in effect and assuming the Variable Conversion Price is the Conversion Price at such time), as applicableand the number of Warrant Shares that are then issuable upon exercise of the Warrants, file without regard to any limitation on the Initial Registration Statement, Investor’s ability to convert the Notes or use reasonable and customary efforts to file amendments to exercise the Initial Warrants. The Company acknowledges that the number of shares initially included in the Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file represents a new registration statement (a “New Registration Statement”), in each case covering good faith estimate of the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion shares issuable upon conversion of the Company’s counsel or any SEC Guidance sets forth a limitation Notes and upon exercise of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c)Warrants. In the event that this good faith estimate proves not to be correct due to a change in the initial Conversion Price for the securities between the date that the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided filed its last pre-effective amendment to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in and any subsequent Registration Statement without filed as required hereunder to maintain a sufficient number of registered Authorized and Reserved Shares) and the date on which any such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be is declared effective by the Commission as soon as practicableSEC, andthen the Company shall, within five (5) business days following notice of such effectiveness, file a post-effective amendment with the SEC increasing the number of shares covered by such Registration Statement to the applicable amount. Provided that the Company meets its obligations under this Section 2(a) with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier filing of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Datepost-effective amendment, the Company shall pay not be deemed to each Holder an amount be in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for default under any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary provision herein or in the Securities Purchase Agreement, no Liquidated Damages shall be payable (i) if as Agreement or the Note by reason of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder temporary shortfall in the event it is unable to lawfully sell any number of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company registered Authorized and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)Reserved Shares.
Appears in 1 contract
Mandatory Registration. (a) On or prior to before the Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, shall prepare and file with the Commission a Registration Statement on Form S-3 as a "shelf" registration statement under Rule 415 covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation at least 125% of the number of shares of Registrable Securities permitted to be registered then issuable on a particular Registration Statement as a secondary offering, conversion of the Preferred Shares plus 100% of the number of Registrable Securities shares of Common Stock issuable upon exercise of the Warrants then outstanding (without regard to be registered any restrictions on such conversion or exercise that might otherwise exist). The Company may not register for resale on the Registration Statement any securities other than the Registrable Securities. The Registration Statement shall state, to the extent permitted by Rule 416 under the Securities Act, that it also covers such indeterminate number of shares of Common Stock as may be required to effect (i) conversion of the Preferred Shares to prevent dilution resulting from stock splits, stock dividends or similar events, or by reason of changes in the Conversion Price in accordance with the terms of the Certificate of Designation and (ii) exercise of the Warrants in full to prevent dilution resulting from stock splits, stock dividends or similar events.
(b) The Company shall use its best efforts to cause the Registration Statement to become effective as soon as practicable following the filing thereof, but in no event later than the Registration Deadline, and shall submit to the Commission, within one (1) business day after the Company learns that no review of the Registration Statement will be reduced pro rata made by the staff of the Commission or that the staff of the Commission has no further comments on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses a request for acceleration of the effectiveness of the Registration Statement to a time and date not later than forty-eight (48) hours after the submission of such request, and maintain the effectiveness of the Registration Statement until the earlier to occur of (i) the date on which all of the Registrable Securities have been sold pursuant to the Registration Statement and (ii) the date on which all of the remaining Registrable Securities (in the reasonable opinion of counsel to the Purchaser) may be immediately sold to the public without registration and without regard to the amount of Registrable Securities which may be sold by a Holder thereof at a given time (the "Registration Period").
(c) If (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (is not filed on or before the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be Filing Deadline or declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to before the Filing Registration Deadline, (iiB) after the Initial Registration Statement or the New Registration Statement, as applicable, is not has been declared effective by the Commission (or otherwise does Commission, sales of Registrable Securities cannot become effective) be made by a Holder under the Registration Statement for any reason on or prior to not within the Effectiveness Deadline, or (iii) after its Effective Date, (A) exclusive control of such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities Holder (other than (i) during an Allowable Grace Perioda Blackout Period or (ii) with respect to Registrable Securities that are then freely saleable pursuant to Rule 144(k) under the Securities Act), (ivC) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement Common Stock is not effective included for quotation on the Nasdaq National Market or available to sell all Registrable SecuritiesNasdaq Small Cap Market (together, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii"Nasdaq Stock Market") or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, listed on the first such Event DateNew York Stock Exchange or American Stock Exchange (each, a "Registration Event"), the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% the lesser of (x) one and one half percent (1.5%) per month and (y) the highest rate permitted by applicable law, times the aggregate Stated Value (as defined in the Certificate of Designation) of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities Preferred Shares held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) accruing daily and compounded monthly, from the date on which a Registration Event first occurs until the date on which the Registration Event is no longer continuing. The amounts paid or payable by the Company hereunder shall be in addition to any other remedies available to a Holder at law or in equity or pursuant to the event it is unable to lawfully sell terms of any other Transaction Document. Payments of its Registrable Securities cash pursuant hereto shall be made within five (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period5) because of possession of material non-public information or (iv) with respect to any period days after the expiration end of the Effectiveness Period each period that gives rise to such obligation, provided that, if any such period extends for more than thirty (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c30) in full within ten (10) Business Days after the date payabledays, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement payments shall be extended without default or Liquidated Damages hereunder in made at the end of each thirty-day period.
(d) In the event that the Company’s failure to obtain the effectiveness of (A) the Registration Statement on is not declared effective by the twentieth (20th) Business Day following the Registration Deadline, (B) after the Registration Statement has been declared effective by the Commission, sales of Registrable Securities cannot be made by a timely basis results from Holder under the failure Registration Statement for any reason not within the exclusive control of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended other than (i) during a Blackout Period or (ii) with respect to Registrable Securities held by as are then freely saleable pursuant to Rule 144(k) under the Securities Act), or (C) the Common Stock is not included for quotation on the Nasdaq Stock Market or listed on the New York Stock Exchange or the American Stock Exchange, (each event described in clause (A), (B) or (C) being hereinafter referred to as a "Repricing Event"), in addition to the amounts which may be payable pursuant to paragraph 2(c) above, the Fixed Conversion Price (as defined in the Certificate of Designation) for any conversion of Preferred Shares occurring during the twenty two (22) Trading Days following the Cure Date (as defined below) with respect to such Registration Rights Purchaserevent shall be deemed to be equal to the lesser of (i) the lowest Conversion Price (as defined in the Certificate of Designation) that would have applied had such conversion occurred during the period between the date on which a Repricing Event occurs and the date on which such Repricing Event is no longer continuing (the "Cure Date") and (ii) the Fixed Conversion Price that would otherwise be in effect on the relevant Conversion Date (as defined in the Certificate of Designation).
Appears in 1 contract
Sources: Registration Rights Agreement (Secure Computing Corp)
Mandatory Registration. (a) On The Company shall prepare, and on or prior to the Filing Deadlinedate which is 90 days after the date of the closing under the Purchase Agreement (the "Closing Date"), file with the SEC a Registration Statement on Form S-3 covering at least 1,200,000 shares of Common Stock as Registrable Securities, and which Registration Statement shall state that, in accordance with Rule 415 under the Securities Act, such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the Preferred Shares or exercise of the Warrants to prevent dilution resulting from stock splits, stock dividends or similar transactions or by reason of changes in the conversion price of the Preferred Shares or the exercise price of the Warrants in accordance with the respective terms thereof. If at any time the number of shares of Common Stock included in the Registration Statement required to be filed as provided in the first sentence of this Section 2(a) shall be insufficient to cover the number of shares of Common Stock issuable on conversion of the Preferred Shares and the exercise in full of the unexercised Warrants, then promptly, but in no event later than 30 days after such insufficiency shall occur, the Company shall, following the written request of the Registration Rights Purchasers, prepare and shall file with the Commission a SEC any required additional Registration Statement covering on Form S-3 (which shall not constitute a post-effective amendment to the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering required to be made on a continuous basis filed pursuant to Rule 415 orthe first sentence of this Section 2(a)) or other applicable form covering such number of shares of Common Stock as shall be sufficient to correct such insufficiency; provided, if Rule 415 is not available for offers and sales of the Registrable Securitieshowever, by such other means of distribution of Registrable Securities as that the Company may reasonably determine shall not be required to file more than one such additional Registration Statement per calendar quarter. For all purposes of this Agreement (other than Section 2(c) hereof) each such additional Registration Statement shall be deemed to be the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, Statement required to be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs filed by the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees pursuant to promptly (ASection 2(a) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if and the opinion of Company and the Company’s counsel or any SEC Guidance sets forth a limitation of Investors shall have the number of Registrable Securities permitted same rights and obligations (other than Section 2(c) hereof) with respect to be registered on a particular such additional Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder they shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, have with respect to the Initial initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts required to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered be filed by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”2(a). The Company shall promptly, but in any event within thirty (30) days of its receipt of written notice, comply with the request effectiveness of Investors holding a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file majority in interest of the effectiveness Registrable Securities that the Company file an amendment to the plan of a Registration Statement within one (1) Business Day distribution of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicableincluding, is but not declared effective by the Commission (or otherwise does not become effective) limited to, a request for any reason on or prior to the Effectiveness Deadlinean underwritten public offering; provided, or (iii) after its Effective Datehowever, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, that the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by file more than one such Holder pursuant amendment to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as plan of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness distribution of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)per calendar year.
Appears in 1 contract
Sources: Registration Rights Agreement (International Remote Imaging Systems Inc /De/)
Mandatory Registration. (a) On The Company shall prepare, and, on or prior to the Initial Registration Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and Deadline (as defined above) file with the Commission a Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 Form S-1 (or, if Rule 415 Form S-1 is not then available, on such form of Registration Statement as is then available for offers and sales to effect a registration of the Registrable Securities, by such other means subject to the consent of distribution of Registrable Securities as the Company may reasonably determine (the Buyer, which consent will not be unreasonably withheld)(the “Initial Registration Statement”) covering the resale of the Registrable Securities which Registration Statement, to the extent allowable under the 1933 Act and the rules and regulations promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon exercise of or otherwise pursuant to the Warrants to prevent dilution resulting from stock splits, stock dividends or similar transactions. Notwithstanding The number of shares of Common Stock initially included in such Registration Statement shall be no less than the registration obligations set forth in this Section 2aggregate number of Warrant Shares that are then issuable upon exercise of or otherwise pursuant to the Warrants, without regard to any limitation on the Buyer's ability to exercise the Warrants (collectively, the “Target Registration Amount”), provided that the Company shall not be required to register any of the shares issuable upon exercise of the “B Warrants” and “C Warrants” (as each is defined in the event that (iSecurities Purchase Agreement) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing in the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreementthe foregoing, if the opinion Company is advised by the staff of the Company’s counsel or any SEC Guidance sets forth Commission in a limitation written comment letter that it is not eligible to conduct the offering of the Debentures under Rule 415 promulgated under the 1933 Act because of the number of Registrable Securities permitted shares sought to be registered on a particular included in the Registration Statement as a secondary offeringStatement, then the Company may reduce (an “SEC Share Reduction”) the number of Registrable Securities to be registered on shares covered by such Registration Statement will be reduced pro rata on to the basis of the aggregate maximum number of Registrable Securities owned by each applicable Holder, and under such circumstances, which would enable the Company will not be subject to conduct such offering in accordance with the payment provisions of Liquidated Damages in Section Rule 415 (c“Rule 415 Eligible”). In the event of an SEC Share Reduction, the inclusion of the Warrant Shares in such initial Registration Statement shall take precedence over and shall not be cut back until the following securities of the Company amends the Initial are cut back and removed from such Registration Statement or files (in the following order): (i) Placement Agent Warrant Shares (to be cut back on a New Registration Statementpro-rata basis), as the case may be, under clauses (Aii) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants any securities of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New be included in such Registration Statement (the “Remainder Registration Statements”pursuant to Section 3(r). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased Warrant shares and the Additional Warrant Shares, on a prorate basis. Any cut back of Warrant Shares will be applied pro rata to be outstanding; each holder in proportion to the principal amount of Debentures held by each Holder. In the event that, due to an SEC Share Reduction or otherwise, any Registration Statement filed hereunder shall (ivwhen combined with any previous Registration Statements that are current and effective) register a number of shares of Common Stock which less than the date such Registrable Securities are sold in Target Registration Amount (a transaction in which “Target Registration Shortfall”), then the applicable rights under this Agreement are not assigned pursuant to Section 8(k) unregistered portion of the Target Registration Amount (such time period, the “Effectiveness PeriodTarget Registration Shortfall Amount”) shall be included in the next Additional Registration Statement (in accordance with Section 3(b) below). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m.shall, Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available by 9:30 a.m. New York City time on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall Trading Day after the effective date of such Registration Statement, file a final Prospectus for a Required Registration Statement with the Commission, Commission as required by Rule 424(b) as promptly as reasonably practicable following 424. The Company acknowledges that the Effective Date.
(c) If: (i) the Initial number of shares initially included in each Registration Statement is not filed with represents a good faith estimate of the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (maximum number of shares issuable upon exercise of or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement Warrants and shall be amended if not sufficient. Each Registration Statement (and each amendment or supplement thereto, and each request for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything acceleration of effectiveness thereof) shall be provided to (and subject to the contrary herein or in approval of) the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by Buyer and its counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (its filing or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)other submission.
Appears in 1 contract
Sources: Registration Rights Agreement (Universal Energy Corp.)
Mandatory Registration. (ai) On The Company shall prepare, and, as soon as practicable, but in no event later than forty-five (45) days after the earlier of (A) the Closing Date (as defined in the Securities Purchase Agreement) or prior to (B) the Filing DeadlineWarrant Trigger Date (the earlier of such dates, the Company shall"FILING DEADLINE"), following the written request of the Registration Rights Purchasers, prepare and file with the Commission SEC a Registration Statement or Registration Statements (as necessary) on Form S-3 covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such (other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreementthan, if the opinion Share Authorization Approval is not obtained prior to the closing of the Company’s counsel or transactions contemplated by the Securities Purchase Agreement, any SEC Guidance sets forth a limitation of Warrant Shares for which the number of Registrable Securities permitted Share Authorization Approval is required prior to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (ctheir issuance). In the event the Company amends the Initial Registration Statement or files that Form S-3 is unavailable for such a New Registration Statement, as the case may be, under clauses (A) or (B) aboveregistration, the Company will shall use reasonable and customary efforts to file with the Commissionsuch other form as is available for such a registration, as promptly as allowed by Commission or SEC Guidance provided subject to the Company or to registrants provisions of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”Section 2(f). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary its best efforts to cause each Required such Registration Statement to be declared effective by the Commission SEC as soon as possible, but in no event later than the earlier of (a) the fifth business day after the SEC advises the Company that either (A) it will not review such Registration Statement or (B) it has no further comments with respect to such Registration Statement, and (b) one hundred thirty five (135) days after the Closing Date (the earlier of such dates, the "EFFECTIVENESS DEADLINE").
(ii) If the Share Authorization Approval is not obtained prior to the closing of the transactions contemplated by the Securities Purchase Agreement, the Company shall prepare, and, as soon as practicable, andbut in no event later than the later of (A) the Filing Deadline and (B) fifteen days (15) days after the date on which the Share Authorization Approval is obtained (the "WARRANT SHARE FILING DEADLINE"), file with respect to the Initial SEC a Registration Statement or Registration Statements (as necessary) on Form S-3 covering the New resale of all of the Warrant Shares for which the Share Authorization Approval is required prior to their issuance. In the event that Form S-3 is unavailable for such a registration, the Company shall use such other form as is available for such a registration, subject to the provisions of Section 2(f). If the Share Authorization Approval is not obtained prior to the closing of the transactions contemplated by the Securities Purchase Agreement, the Company shall use its best efforts to cause such Registration StatementStatement to be declared effective by the SEC as soon as possible, as applicable, but in no event later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (iia) the date that all Registrable Securities covered by such Required Registration Statement may be sold by fifth business day after the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to SEC advises the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, that either (A) it will not review such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted it has no further comments with respect to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing DeadlineStatement, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses b) ninety (i90) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), days after the date on which the Share Authorization Approval is obtained (the earlier of such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Datedates, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser"WARRANT SHARE EFFECTIVENESS DEADLINE").
Appears in 1 contract
Sources: Registration Rights Agreement (La Jolla Pharmaceutical Co)
Mandatory Registration. (a) On or prior to Commencing on the Trigger Date, the Company shall prepare, and, as soon as practicable, but in no event later than the Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission SEC a Registration Statement on Form S-3 covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files that Form S-3 is unavailable for such a New Registration Statement, as the case may be, under clauses (A) or (B) aboveregistration, the Company will shall use reasonable and customary efforts to file with the Commission, such other form as promptly as allowed by Commission or SEC Guidance provided is available for such a registration on another appropriate form reasonably acceptable to the Company or to registrants of securities in generalRequired Holders, one or more registration statements on such form available subject to the Company to provisions of Section 2(c). The Registration Statement prepared pursuant hereto shall register for resale those Registrable Securities at least the number of Common Shares equal to the Required Registration Amount as of the date such Registration Statement is initially filed with the SEC. The Registration Statement shall contain (except if otherwise directed by the Required Holders) the “Selling Shareholders” and “Plan of Distribution” sections in substantially the form attached hereto as Exhibit B; provided that were not registered for resale the Company may make any changes to such sections as requested by the SEC so long as none of such changes are materially inconsistent with the form attached hereto as Exhibit B or adversely affect any Investor (including, without limitation, any restrictions on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”manner of disposition). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use its commercially reasonable and customary efforts to cause each Required have such Registration Statement to be declared effective by the Commission SEC as soon as practicable, and, with respect to but in no event later than the Initial Registration Statement or applicable Effectiveness Deadline. By 9:30 a.m. on the New Business Day immediately following the Effective Date of the applicable Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by SEC in accordance with Rule 424(b) as promptly as reasonably practicable following 424 under the Effective Date.
(c) If: (i) 1933 Act the Initial final prospectus to be used in connection with sales pursuant to such Registration Statement is not filed with the Commission on or prior Statement. Notwithstanding anything to the Filing Deadlinecontrary contained in this Agreement, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay ensure that, when filed and at all times while effective, each Registration Statement and the prospectus used in connection with such Registration Statement will disclose (whether directly or through incorporation by reference to each Holder an amount in cash, as liquidated damages other SEC filings to the extent permitted) all material information regarding the Company and not as a penalty (“Liquidated Damages”), equal to 3.0% its securities. In no event shall the Company include any securities other than Registrable Securities on any Registration Statement without the prior written consent of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event DateRequired Holders. The parties agree that notwithstanding anything to Company shall not after the contrary herein or in date hereof until the Purchase Agreement, no Liquidated Damages shall be payable (i) if as Effective Date of the relevant Event Date, the Registrable Securities may Registration Statement required to be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages filed pursuant to this Section (c2(a) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount enter into any agreement providing any such right to any of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)its security holders.
Appears in 1 contract
Mandatory Registration. (a) On or prior to before the Filing Deadlineforty-fifth (45th) day following Closing, the Company shall, following the written request of the Registration Rights Purchasers, shall prepare and file with the Commission a Registration Statement on Form S-1 as a "shelf" registration statement under Rule 415 covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation at least 150% of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number shares of Registrable Securities then issuable on conversion of the Preferred Shares (assuming that the Conversion Date (as defined in the Certificate of Designation) for such conversion were to occur on the date on which the Registration Statement is so filed) and exercise of the Warrants. The Registration Statement shall state, to the extent permitted by Rule 416 under the Securities Act, that it also covers such indeterminate number of shares of Common Stock as may be registered required to effect (i) conversion of the Preferred Shares to prevent dilution resulting from stock splits, stock dividends or similar events, or by reason of changes in the Conversion Price in accordance with the terms of the Certificate of Designation and (ii) exercise of the Warrants in full to prevent dilution resulting from stock splits, stock dividends or similar events. The Company agrees that, upon becoming eligible to file with the Commission a Registration Statement on such Form S-3, the Company will replace the Registration Statement on Form S-1 referred to above with a Registration Statement on Form S-3.
(b) The Company shall use its best efforts to cause the Registration Statement to become effective as soon as practicable following the filing thereof, but in no event later than the Registration Deadline, and shall submit to the Commission, within five (5) business days after the Company learns that no review of the Registration Statement will be reduced pro rata made by the staff of the Commission or that the staff of the Commission has no further comments on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, a request for acceleration of the Company will use reasonable and customary efforts to file with effectiveness of the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by a time and date not later than forty-eight (48) hours after the Commission as soon as practicablesubmission of such request, and, with respect to and maintain the Initial effectiveness of the Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier to occur of (i) such time as the date on which all of the Registrable Securities covered by such Required Registration Statement have been sold by pursuant to the Holders; Registration Statement and (ii) the date that on which all of the remaining Registrable Securities covered by such Required Registration Statement (in the reasonable opinion of counsel to the Purchasers) may be immediately sold to the public without registration and without regard to the amount of Registrable Securities which may be sold by a Holder thereof at a given time (the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”"REGISTRATION PERIOD"). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) If the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (on or otherwise does not before the Registration Deadline as a result of the failure by the Company to use its best efforts to cause the Registration Statement to become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update respond completely and as soon as practicable to comments made by the Commission on the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% the lesser of (x) two percent (2%) per month and (y) the highest rate permitted by applicable law, TIMES the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken Preferred Shares held by such Holder, accruing daily and compounded monthly, from the Registration Deadline until the date on which the Registration Statement is declared effective. The amounts paid or payable by the Company hereunder shall be in addition to any other remedies available to such Holder at law or in equity or pursuant to the terms of any other Transaction Document. Payments of cash pursuant hereto shall be made within five (iii5) days after the end of each period that gives rise to such obligation, provided that, if any such period extends for more than thirty (30) days, payments shall be made at the end of each thirty-day period.
(d) In the event that (A) the Registration Statement is not declared effective by the twentieth (20th) Business Day following the Registration Deadline, (B) after the Registration Statement has been declared effective by the Commission, sales of Registrable Securities cannot be made by a Holder in under the event it is unable to lawfully sell Registration Statement for any reason not within the exclusive control of its such Holder (other than such Registrable Securities as are then freely saleable pursuant to Rule 144(k) under the Securities Act and except during a Blackout Period (includingas defined below)), without limitation(C) the Common Stock is not included for quotation on the Nasdaq Stock Market ("NASDAQ") or listed on the New York Stock Exchange or the American Stock Exchange, or (D) the Company breaches, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of any material non-public information respect, any material covenant or (iv) with respect to any period after the expiration other material term or condition of the Effectiveness Period (it being understood that this clause shall not relieve Securities Purchase Agreement, the Company Registration Rights Agreement, the Warrants or any other agreement, document, certificate or other instrument delivered in connection with the transactions contemplated hereby or thereby, and such breach continues for a period of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after written notice thereof to the Company from a Holder; (each event described in clause (A), (B), (C) or (D) being hereinafter referred to as a "REPRICING EVENT"), in addition to the amounts payable pursuant to paragraph 2(c) above, (I) the Fixed Conversion Price (as defined in the Certificate of Designation) for any conversion of Preferred Shares occurring during the three Trading Days following the Cure Date (as defined below) with respect to such event shall be deemed to be equal to the lesser of (i) the lowest Conversion Price (as defined in the Certificate of Designation) that would have applied had such conversion occurred during the period between the date payable, on which a Repricing Event occurs and the date on which such Repricing Event is no longer continuing (a "CURE DATE") and (ii) the Fixed Conversion Price that would otherwise be in effect on the relevant Conversion Date (as defined in the Certificate of Designation) and (II) the Company will shall pay interest on the to such Holder an amount of Liquidated Damages then owing equal to the Holder at a rate lesser of 0.5% (x) one and one quarter percent (1.25%) per month on an annualized basis and (or such lesser maximum amount that is y) the highest rate permitted to be paid by applicable law) to , TIMES the aggregate purchase price of the Preferred Shares held by such Holder, accruing daily and compounded monthly, from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).such
Appears in 1 contract
Mandatory Registration. (ai) On Following the Closing Date, the Company shall prepare, and, on or prior to the applicable Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission SEC a Registration Statement (the “Mandatory Registration Statement”) on Form S-3 (or, if Form S-3 is not then available, on such form of Registration Statement as is then available to effect a Registration of the Registrable Securities, subject to the consent of the Investor, which consent shall not be unreasonably withheld) covering the resale of the Registrable Securities, which Registration Statement, to the extent allowable under the Securities Act and the rules and regulations promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon exercise of or otherwise pursuant to the Warrants or the Warrant Shares to prevent dilution resulting from stock splits, stock dividends, stock issuances or similar transactions. The number of shares of Common Stock initially included in such Registration Statement shall be no less than the aggregate number of Warrant Shares that are then issuable upon exercise of or otherwise pursuant to the Warrants, without regard to any limitations on the Investors’ ability to exercise the Warrants. Each Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to (and shall be subject to the approval, which shall not be unreasonably withheld or delayed, of) the Investors and their counsel prior to its filing or other submission.
(ii) If for any reason, despite the Company’s use of its reasonable best efforts to include all of the Registrable Securities in the Registration Statement filed pursuant to Section 2(a)(i) above (and subject to Section 3(q) below), the SEC does not permit all of the Registrable Securities to be included in, or for any other reason any Registrable Securities are not then included in, such Registration Statement, then the Company shall prepare, and, as soon as practicable but in no event later than the Additional Filing Deadline, file with the SEC an additional Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 1 contract
Mandatory Registration. (a) On Following the Closing of any Preferred Stock pursuant to the Securities Purchase Agreement and the Certificate of Designation, the Company shall prepare, and, on or prior to the applicable Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and Deadline (as defined above) file with the Commission SEC a Registration Statement covering (the resale of all of the Registrable Securities not already covered by an existing and effective “Mandatory Registration Statement for an offering to be made Statement”) on a continuous basis pursuant to Rule 415 Form S-3 or Form SB-2 (or, if Rule 415 Form S-3 and Form SB-2 are not then available, on such form of Registration Statement as is not then available for offers and sales to effect a registration of the Registrable Securities, by such other means subject to the consent of distribution the Buyer, which consent will not be unreasonably withheld) covering the resale of the Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial which Registration Statement, to the extent allowable under the 1933 Act and the rules and regulations promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of or otherwise pursuant to the Certificate of Designation and exercise of or otherwise pursuant to the Warrants to prevent dilution resulting from stock splits, stock dividends or similar transactions. The number of shares of Common Stock initially included in such Registration Statement shall be no less than one and one-half (ii1.5) times the Commission informs the Company aggregate number of Conversion Shares that all such Registrable Securities cannot, as a result are then issuable upon conversion of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, Preferred Stock or use reasonable and customary efforts to file amendments otherwise pursuant to the Initial Certificate of Designation (based on the Conversion Price [as defined in the Certificate of Designation] then in effect) plus the aggregate number of Warrant Shares that are then issuable upon exercise of or otherwise pursuant to the Warrants, without regard to any limitation on the Buyer’s ability to convert the Preferred Stock or exercise the Warrants. The Company acknowledges that the number of shares initially included in each Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file represents a new registration statement (a “New Registration Statement”), in each case covering good faith estimate of the maximum number of such Registrable Securities permitted to be registered thereon, on such form available shares issuable upon conversion of the Preferred Stock or otherwise pursuant to the Company Certificate of Designation and exercise of or otherwise pursuant to register for resale the Registrable Securities as a secondary offeringWarrants and shall be amended if not sufficient. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Each Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by (and each applicable Holderamendment or supplement thereto, and under such circumstances, the Company will not each request for acceleration of effectiveness thereof) shall be provided to (and subject to the payment of Liquidated Damages approval of) the Buyer and its counsel prior to its filing or other submission. The Company may include in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Mandatory Registration Statement (and any amendments and supplements thereto) the “Remainder Registration Statements”shares of Common Stock issuable upon the conversion of the Series A Preferred Stock and upon exercise of the warrants issued to the holders of Series A Preferred Stock or their assignees, the shares of Common Stock issuable upon conversion of preferred stock issued as a Preferred Stock Lock-Up Exception (as defined in the Securities Purchase Agreement) and upon exercise of any warrants issued to the holders of such preferred stock or their assignees, and the shares of Common Stock referenced in SCHEDULE 3(c-2)(ii). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable), and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: and (ie) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)Purchase Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Avicena Group, Inc.)
Mandatory Registration. (a) On The Company shall prepare and file as soon as practicable but in any event on or prior to twenty (20) business days after the date of execution of this Agreement by all parties hereto and of agreements on similar terms with all other holder(s) of Series 1 Warrants hereof (the "Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and file Date") with the Commission SEC a Registration Statement on Form S-3 covering the resale of all of the Registrable Securities not already covered by an existing and effective registration statement 333-95333 (including, without limitation, those issuable upon exercise of the Exchange Warrant) in a secondary offering by Purchasers (as defined in the Registration Rights Agreement), provided that each Purchaser shall have provided timely to the Company all information needed for the Registration Statement regarding it and its plan of distribution. The Registration Statement (and each amendment or supplement thereto, and each request for an offering acceleration of effectiveness thereof) shall be provided to (and subject to the approval of (which approval shall not be made on a continuous basis pursuant unreasonably withheld or denied)) each Initial Purchaser and its counsel at least three (3) days prior to Rule 415 or, if Rule 415 is its filing or other submission. If the initial Purchasers and their counsel do not available provide such approval comments reflecting such changes as they require for offers and sales such approval by the end of the Registrable Securitiessecond business day after being provided such documents, by such other means of distribution of Registrable Securities the Registration Deadline (as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i6(b) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, below shall be registered extended for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted days by which the time period between the providing of such documents and the receipt of approval or such comments exceeds the period ending at the end of the second business day after the documents are so provided. A filing which is timely hereunder shall be deemed to be registered on a particular Registration Statement as a secondary offering, timely filing with respect to the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis Filing Date under Section 2.1 of the aggregate number of Registrable Securities owned Registration Rights Agreement resulting from the transactions contemplated by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consentthis Agreement.
(b) The Company shall use reasonable and customary efforts to cause each Required the Registration Statement filed pursuant to be declared the preceding Section 6(a) (the "Registration Statement") to become effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, but in no event later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required ninetieth (90th) day after the Filing Date. If the Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason SEC on or prior to before the Effectiveness ninetieth (90th) day after the Filing Date (such date, the "Registration Deadline, " and such failure a "Registration Failure") or (iii) if after its Effective Date, (A) such Registration Statement ceases to be has been declared effective for any reason (by the SEC, sales of all the Registrable Securities, including without limitation all New Warrant Shares, cannot be made pursuant to the Registration Statement within two years after its effective date (by reason of a stop order, order or the Company’s 's failure to update the Registration StatementStatement or any other reason outside the sole control of the Purchasers) (a "Registration Suspension"), then the Company will make payments to remain continuously effective CC in such amounts and at such times as shall be determined pursuant to all Registrable Securities this Section 6(b) as partial relief for which it is required the damages to be effective, CC by reason of any such delay in or (B) reduction of its ability to sell the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (which remedy shall not be exclusive of any other than during an Allowable Grace Periodremedies available at law or in equity except that it is exclusive of those otherwise provided under Section 2.3 of the Registration Rights Agreement), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in . In the event of a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event DateFailure, the Company shall pay to each Holder CC an amount in cash, as liquidated damages and not as equal to (A) $5,000 TIMES (B) the number of days of the first month following the Registration Deadline (prorated per day for a penalty (“Liquidated Damages”partial month), equal to 3.0% plus (C) $10,000 TIMES (D) the number of days of the aggregate purchase price paid by such Holder any month following the first month after the Registration Deadline (prorated per day for partial months) prior to the date the Registration Statement filed pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (iSection 6(a) if as of the relevant Event Date, the Registrable Securities may be sold is declared effective by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitationSEC. In addition, in the event of a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve Registration Suspension, the Company of any Liquidated Damages accruing prior shall pay to the expiration Purchasers an amount equal to (E) $7,500 TIMES (F) the number of months (prorated per day for partial months) from (x) the Effectiveness Period)date on which sales of all the Registrable Securities first cannot be made to (y) the date on which sales of all the Registrable Securities can again be made. If the Company fails Amounts to pay any Liquidated Damages be paid pursuant to this Section 6(b) shall be paid in cash within five (c5) in full within ten (10) Business Days days after the date payableend of each period that gives rise to such obligation, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis provided that, if any such period extends for more than thirty (or such lesser maximum amount that is permitted to be paid by applicable law30) to the Holderdays, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement payments shall be extended without default or Liquidated Damages hereunder in made for each such thirty (30) day period within five (5) days after the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure end of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act thirty (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)30) day period.
Appears in 1 contract
Mandatory Registration. The Company shall prepare and, as soon as practicable but in no event later than thirty (a30) On or prior to days after the Initial Closing Date (the "Required Filing DeadlineDate"), the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities not already covered by on Form SB-2, or an existing and effective amendment to any pending Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion Form SB-2 of the Company’s counsel or any SEC Guidance sets forth a limitation , covering resales of (a) the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, Warrants and (b) the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata Minimum Conversion Shares on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c)filing date. In the event that Form SB-2 is unavailable for such a registration, the Company amends the Initial shall use such other form as is available for such a registration. Such Registration Statement or files a New amended Registration Statement, as the case may be, shall state that, in accordance with Rule 416 under clauses the Securities Act, it also covers such indeterminate number of additional Shares as may become issuable upon conversion of the Debentures and exercise of the Warrants (Ai) to prevent dilution resulting from stock splits, stock dividends or similar transactions and (Bii) aboveto the extent consistent with the interpretations of the Commission of such rule at such time, resulting from any adjustment in the applicable Conversion Price of such Debentures or the Current Warrant Price of such Warrants. If on any date the Minimum Conversion Shares exceed the total number of Shares so registered, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on shall (i) if such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be has not been declared effective by the Commission as soon as practicableat that time, and, with respect to amend the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered filed by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter the preceding portions of this paragraph, to register all of such effectMinimum Conversion Shares, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial if such Registration Statement or the New Registration Statement, as applicable, is not has been declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to at that time, file with the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Commission an additional Registration Statement ceases to be effective for any reason on SB-2 (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitationor, in the event that Form SB-2 is unavailable for such a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payableregistration, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that other form as is permitted to be paid by applicable lawavailable) to the Holder, accruing daily from the date register all of such Liquidated Damages are due until Minimum Conversion Shares that have not already been so registered. The Company shall use its best efforts to cause any such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder amended Registration Statement, as the case may be, to become effective within the earliest to occur of (i) ninety (90) days following the Initial Closing Date or in the event that the Company’s failure Commission reviews the Registration Statement, no longer than 120 days from the Initial Closing Date; or (ii) if the Commission elects not to obtain the effectiveness conduct a review of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).or has indicated that they
Appears in 1 contract
Sources: Registration Rights Agreement (Airtech International Group Inc)
Mandatory Registration. (a) On or prior to the Filing Deadline, the The Company shall, following the written request of the Registration Rights Purchasers, shall prepare and file with the Securities and Exchange Commission (the “Commission”) within six (6) months after the date on which a minimum of $4,000,000 has been raised (the “Filing Date”) by the Company in connection with that certain offering described in the Company’s Confidential Offering Memorandum, dated as of October 10, 2006 and as amended in Amendment No. 1 to the Memorandum dated May 1, 2007 (“Amendment No. 1”), Amendment No. 2 to the Memorandum dated October 1, 2007 (“Amendment No. 2”) and Amendment No. 3 to the Memorandum dated November 1, 2007 which incorporates the information presented in Amendment No. 1 and Amendment No. 2 (the “Memorandum”), a Resale Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 Form SB-2 (or, if Rule 415 Form SB-2 is not then available, on such form of Registration Statement as is then available for offers and sales to effect a registration of the Registrable Securities, by such other means of distribution of Registrable Securities as subject to the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result consent of the application of Rule 415Holders, which consent will not be registered for resale as a secondary offering on a single registration statement prior to filing the Initial unreasonably withheld), which Resale Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective extent allowable under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 1441933, as determined by counsel to amended (the Company pursuant to a written opinion letter to such effect“1933 Act”) and the rules and regulations promulgated thereunder (including Rule 415), addressed and reasonably acceptable to shall register the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time periodShares, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m.Warrant Shares, Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s any shares issued to M▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Capital, Ltd. (the “Placement Agent”) and any shares that are issuable to the Placement Agent upon exercise the of Placement Warrants (the Shares, Warrant Shares and any shares issuable to the Placement Agent upon exercise of the Placement Warrants are hereinafter collectively referred to as the “Registrable Securities”) and such Resale Registration Statement with shall state that it also covers such indeterminate number of additional shares of the Commission, Company’s common stock as required by Rule 424(b) as promptly as reasonably practicable following may become issuable upon the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or issuance of additional Units prior to the Filing Deadline, (ii) filing of the Initial Resale Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 1 contract
Mandatory Registration. (a) On The Company shall prepare, and, on or prior to twenty (20) business days after the Filing Deadline, the Company shall, following the written request date of the Registration Rights PurchasersClosing (the "Filing Date"), prepare and file with the Commission SEC a Registration Statement on Form S-3 (or, if Form S-3 is not then available, on such form of Registration Statement as is then available to effect a registration of all of the Registrable Securities, subject to the consent of the Initial Purchasers (as determined pursuant to Section 11.10 hereof)) covering the resale of all of the Registrable Securities, which Registration Statement, to the extent allowable under the Securities not already covered by an existing Act and effective the Rules promulgated thereunder (including Rule 416), shall state that such Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the Registrable SecuritiesPreferred Stock and exercise of the Warrants (i) to prevent dilution resulting from stock splits, stock dividends or similar transactions or (ii) by such other means reason of distribution changes in the Conversion Price of the Preferred Stock or the Exercise Price of the Warrants in accordance with the respective terms thereof, or the number of shares of Common Stock purchasable thereunder, in accordance with the terms thereof. The Registrable Securities included in the Registration Statement shall be allocated among the Purchasers as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in 11.11 hereof. The Registration Statement (and each amendment or supplement thereto) shall be provided to (and subject to the event that approval of (iwhich approval shall not be unreasonably withheld or delayed)) the Company’s Initial Purchasers and their counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to its filing or other submission, except to the Initial extent that a post-effective amendment of such Registration Statement, or (ii) supplement to the Commission informs related prospectus, is required by applicable securities law to be filed before such approval can reasonably be obtained, in which case the Company that all shall provide a copy of such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof andamendment or supplement, as applicable, file the to such Initial Registration Statement, or use reasonable Purchasers and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s their counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) practicable after such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Datefiling.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 1 contract
Mandatory Registration. (a) On or prior to the Filing Deadline, the 2.1.1 The Company shall, following the written request of the Registration Rights Purchasers, prepare and shall file with the Commission SEC, promptly after the Closing Date, a Registration Statement covering the resale on Form S-3 (or, if Form S-3 is not available, on such form of Registration Statement as is then available to effect a registration of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering Securities; provided, that the Company shall convert such other form to be made Form S-3, or file a replacement registration statement on a continuous basis pursuant to Rule 415 orForm S-3 promptly after the first date on which it meets such requirement), if Rule 415 is not available for offers and sales covering the resale of 125% of the Registrable Securities, which Registration Statement, to the extent allowable under the Securities Act and the rules promulgated thereunder, shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the Series A Preferred Stock, exercise of the Warrants or exercise of the Placement Agent Warrants pursuant to provisions to prevent dilution resulting from stock splits, stock dividends or similar transactions (the "MANDATORY REGISTRATION STATEMENT"). The Mandatory Registration Statement shall contain, unless otherwise required by such other means applicable law or the SEC, the "SELLING SHAREHOLDERS" and "PLAN OF DISTRIBUTION" section of distribution of the Prospectus in a form reasonably satisfactory to the Investors based upon information provided by the selling shareholder. The Registrable Securities as included in the Mandatory Registration Statement shall be registered on behalf of the Investors set forth on SCHEDULE 1 hereof. The Mandatory Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to the Investors and their counsel at least five (5) business days prior to its filing or other submission; such notice to specify the securities to be registered, the proposed numbers and amounts thereof and the date thereafter by which the Company may reasonably determine (must receive the “Initial Investors' written indication if any Investor does not wish to include their Registrable Securities in such Registration Statement”). Notwithstanding Statement and advising the registration obligations set forth in Investors of their rights under this Section 2. The Company shall file the Mandatory Registration Statement and cause all of the Registrable Securities (unless an Investor has indicated otherwise with respect to all or any portion of such Investor's Registrable Securities pursuant to the preceding sentence) to be registered under the Securities Act, in connection with the event that sale or other disposition by the Investors of the Registrable Securities so registered. The Company shall use its best efforts (i) to cause the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Mandatory Registration Statement, as amended, to become effective as soon as practicable after the filing thereof and (ii) to maintain the effectiveness of the Mandatory Registration Statement for a period of two years from the date such registration statement is initially declared effective..
2.1.2 If the Mandatory Registration Statement has not been declared or ordered effective within one hundred twenty (120) days after the Closing, the Company shall pay each Investor a fee equal to 1% of the purchase price paid by such Investor for the Securities plus the aggregate exercise price of the Warrants and the Placement Agent Warrants for the first two thirty (30) day periods after such failure and 2.5% of such amount for each subsequent thirty (30) day period (pro rata, in each case, for partial months), which payments shall be payable at the end of each calendar month until the date upon which the Mandatory Registration Statement is declared effective. This payment may be made, at the election of the Company, in cash or in additional shares of Series A Preferred Stock valued at the Original Purchase Price.
2.1.3 In the event that the Registration Statement is filed and declared effective but, during the Registration Period (as defined in Section 3.1.2 below), shall thereafter cease to be effective or useable or the New prospectus included in the Registration Statement (the “Remainder Registration Statements”"PROSPECTUS", as amended or supplemented by any prospectus supplement and by all other amendments thereto and all material incorporated by reference in such Prospectus) ceases to be usable (other than as a result of any act or omission by a holder of Registrable Securities). No Holder shall be named as an “underwriter” , in either case, in connection with resales of the Registrable Securities, without such lapse being cured within ten (10) business days (the "CURE PERIOD"), with the maximum number of days in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
Cure Periods during any 365 day period not to exceed forty-five (b45) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared business days, by a post-effective by the Commission as soon as practicable, and, with respect amendment to the Initial Registration Statement or the New Registration Statement, as applicablea supplement to the Prospectus or a report filed with the SEC pursuant to Section 13(a), no later than 13(c), 14 or 15(d) of the Effectiveness DeadlineExchange Act that cures such lapse, then the Company shall pay to each Investor (in addition to the rights and shall use reasonable remedies available to each Investor under applicable law and customary efforts to keep each Required Registration Statement continuously effective under this Agreement), for the Securities Act until period from and including the first day following the expiration of the Cure Period (or number of days in such Cure Periods exceeding the aforementioned forty-five (45) days) until, but excluding, the earlier of (i) the date on which such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; failure is cured and (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in on which the applicable rights under this Agreement are not assigned pursuant Registration Period expires, at a rate equal to Section 8(ktwo and one-half percent (2.5%) for every thirty days after such failure (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file pro rata for partial months) of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to Investor for the Purchase Agreement for any Registrable Securities held by such Holder on plus the Event Date. The parties agree that notwithstanding anything to aggregate exercise price of the contrary herein or in Warrants and the Purchase AgreementPlacement Agent Warrants, no Liquidated Damages which payment shall be payable (i) if as at the end of each calendar month. The Company shall have the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails option to pay any Liquidated Damages pursuant to this such amounts in cash or Common Stock as provided for in Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)2.1.2 above.
Appears in 1 contract
Mandatory Registration. (a) On or prior to the each Filing DeadlineDate, the Company shall, following the written request of the Registration Rights Purchasers, shall prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities that are not already covered by then registered on an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers 415. The Initial Registration Statement filed hereunder shall be on Form S-1 and sales shall contain (unless otherwise directed by ▇▇▇▇▇▇) substantially the form of the “Plan of Distribution” attached hereto as Annex A and substantially in the form of the “Selling Stockholder” section attached hereto as Annex B; provided, however, that Holder shall not be required to be named as an “underwriter” without Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercially reasonable efforts to cause a Registration Statement filed under this Agreement (including, without limitation, under Section 3(c)) to be declared effective under the Securities Act as promptly as possible after the filing thereof, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until the earlier of the date that all Registrable Securities, Securities covered by such other means of distribution of Registrable Securities as Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company may reasonably determine to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the Holder (the “Initial Registration StatementEffectiveness Period”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) on a Trading Day. The Company shall promptly notify the Holder via facsimile or by e-mail of the effectiveness of a Registration Statement on the same Trading Day that the Company telephonically confirms effectiveness with the Commission, which shall be the date requested for effectiveness of such Registration Statement. The Company shall file a final Prospectus with the Commission as required by Rule 424 within the time period required by Rule 424.
(b) Notwithstanding the registration obligations set forth in this Section 22(a), in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) if the Commission informs the Company that all such of the Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or ▇▇▇▇▇▇ and use its commercially reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”)Commission, in each case covering the maximum number of such Registrable Securities permitted to be registered thereonby the Commission, on Form S-1 or such other form then available to the Company to register for resale the Registrable Securities as a secondary offering. , subject to the provisions of Section 2(d); with respect to filing on Form S-1 or other appropriate form; provided, however, that prior to filing such amendment, the Company shall be obligated to use commercially reasonable efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09.
(c) Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel Commission or any SEC Guidance sets forth a limitation of on the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offeringoffering (and notwithstanding that the Company used reasonable efforts to advocate with the Commission for the registration of all or a greater portion of Registrable Securities), unless otherwise directed in writing by Holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on such that the basis of the aggregate number of Company shall first reduce or eliminate any securities to be included other than Registrable Securities owned by each applicable Holder, and under such circumstancessecond, the Company will not be subject to shall reduce Registrable Securities represented by Warrant Shares. In the payment event of Liquidated Damages in Section a cutback hereunder, the Company shall give Holder at least five (c)5) Trading Days prior written notice along with the calculations. In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as in accordance with the case may be, under clauses (A) or (B) aboveforegoing, the Company will use its commercially reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on Form S-1 or such other form then available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(cd) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the its Filing Deadline, Date or (ii) the Initial Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the Securities Act, within five (5) Trading Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the New Commission that such Registration StatementStatement will not be “reviewed” or will not be subject to further review, as applicable, or (iii) a Registration Statement registering for resale all of the Registrable Securities is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to by the Effectiveness DeadlineDate of the Initial Registration Statement, or (iiiiv) after its Effective Datethe effective date of a Registration Statement, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effectiveincluded in such Registration Statement, or (B) the Holders Holder are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, for more than ten (10) consecutive calendar days or more than an aggregate of fifteen (15) calendar days (which need not be consecutive calendar days) during any 12-month period (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and”, and for purposes of clauses (i), ) and (ii), (iii) or (viv), the date on which such Event occurs, or and for purposes purpose of clause (ivii) the date on which such Allowable Grace Period five (5) Trading Day period is exceeded, and for purpose of clause (i) the date on which such ten (10) or fifteen (15) calendar day period, as applicable, is exceeded being referred to as an “Event Date”), then then, in addition to any other rights the Holders Holder may have hereunder or under applicable law, on the first each such Event DateDate and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each the Holder an amount in cash, as partial liquidated damages and not as a penalty (“Liquidated Damages”)penalty, equal to 3.0the product of 1.0% of multiplied by the aggregate purchase price Subscription Amount paid by such the Holder pursuant to the Purchase Agreement for any Registrable Securities held by such the Holder on the Event Date. The parties agree that notwithstanding anything the maximum aggregate liquidated damages payable to a Holder under this Agreement shall be 6% of the contrary herein or in aggregate Subscription Amount paid by the Holder pursuant to the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages partial liquidated damages pursuant to this Section (c) in full within ten (10) Business Days seven days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder thereon at a rate of 0.518% per month on an annualized basis annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. With respect The partial liquidated damages pursuant to the terms hereof shall apply on a Holderdaily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary provided in this Agreement, the Effectiveness Deadline Company shall not be liable for liquidated damages under this Agreement as to any Registrable Securities that are not permitted by the Commission to be included in a Required Registration Statement due to SEC Guidance from the time that it is determined that such Registrable Securities are not permitted to be registered solely due to SEC Guidance until such time as the provisions of this Agreement as to the additional Registration Statements required to be filed hereunder are triggered, in which case the provisions of Section 2.(c) shall once again apply, if applicable. In such case, the liquidated damages shall be extended without default or Liquidated Damages hereunder calculated to only apply to the percentage of Registrable Securities that are permitted in accordance with SEC Guidance to be included in such Registration Statement.
(e) The Company undertakes to use commercially reasonable efforts to register the event Registrable Securities on Form S-3 when such form becomes available, provided that the Company’s failure to obtain Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on a timely basis results from Form S-3 covering the failure of such Holder Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to timely provide the contrary contained herein, in no event shall the Company with information requested by be permitted to name any Holder or affiliate of a Holder as an underwriter without the Company and necessary to complete the Registration Statement in accordance with the requirements prior written consent of the Securities Act Holder (in which case the Effectiveness Deadline would such consent not to be extended with respect to Registrable Securities held by such Registration Rights Purchaserunreasonably withheld or delayed).
Appears in 1 contract
Mandatory Registration. (a) On The Company shall prepare, and, as soon as practicable, but in no event later than thirty (30) days from the date hereof, file with the SEC a registration statement on Form S-1 (or prior Form S-3 if available) covering the resale with respect to all Registrable Securities of Investor issued or issuable upon conversion of the Convertible Notes and use its commercially reasonable efforts to cause such registration statement to become effective and keep such registration statement effective for a period of up to one hundred twenty (120) days following the tenth (10th) anniversary of the date hereof or, if earlier, until the distribution contemplated in the registration statement has been completed; provided, however, that period shall be extended for a period of time equal to the Filing Deadlineperiod the Investor refrains, at the request of an underwriter of Common Stock (or other securities) of the Company, from selling any securities included in such registration. If such registration statement (or any successor registration statement) shall expire, the Company shall, following prior to such expiration, file a replacement registration statement that is in compliance with this Subsection 2.1(a). If at any time and from time to time the written request Investor is issued any additional Registrable Securities, the Company shall prepare and file a registration statementwith respect to such additional Registrable Securities in compliance with this Subsection 2.1(a).
(b) In furtherance of Subsection 2.1(a), the Registration Rights PurchasersCompany shall, as expeditiously as reasonably possible:
(i) prepare and file with the Commission a Registration Statement covering SEC such amendments and supplements to such registration statement, and the resale prospectus used in connection with such registration statement, as may be necessary to comply with the Securities Act in order to enable the disposition of all of the Registrable Securities not already securities covered by an existing such registration statement;
(ii) furnish to the Investor such numbers of copies of a prospectus, including a preliminary prospectus, as required by the Securities Act, and effective Registration Statement for an offering such other documents as the Investor may reasonably request in order to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales facilitate their disposition of the its Registrable Securities, ;
(iii) register and qualify the securities covered by such registration statement under such other means securities or blue-sky laws of distribution of Registrable Securities such jurisdictions as shall be reasonably requested by the Investor; provided that the Company shall not be required to qualify to do business or to file a general consent to service of process in any such states or jurisdictions, unless the Company is already subject to service in such jurisdiction and except as may reasonably determine be required by the Securities Act;
(the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, iv) in the event that of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the underwriter(s) of such offering;
(iv) the Company’s counsel determines that use its commercially reasonable efforts to cause all such Registrable Securities cannot, as a result of the application of Rule 415, covered by such registration statement to be registered for resale as a secondary offering listed on a single registration statement prior to filing the Initial Registration Statement, national securities exchange or trading system and each securities exchange and trading system (iiif any) the Commission informs on which similar securities issued by the Company that are then listed;
(vi) provide a transfer agent and registrar for all Registrable Securities registered pursuant to this Agreement and provide a CUSIP number for all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”)Securities, in each case covering not later than the maximum number effective date of such Registrable Securities permitted registration;
(vii) promptly make available for inspection by the Investor, any managing underwriter(s) participating in any disposition pursuant to be registered thereonsuch registration statement, on and any attorney or accountant or other agent retained by any such form available to underwriter or selected by the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any Investor, all financial and other provision of this Agreementrecords, if the opinion pertinent corporate documents, and properties of the Company, and cause the Company’s counsel officers, directors, employees, and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant, or any SEC Guidance sets forth a limitation agent, in each case, as necessary or advisable to verify the accuracy of the number of Registrable Securities permitted information in such registration statement and to be registered on a particular Registration Statement as a secondary offeringconduct appropriate due diligence in connection therewith;
(viii) notify the Investor, promptly after the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis Company receives notice thereof, of the aggregate number time when such registration statement has been declared effective or a supplement to any prospectus forming a part of Registrable Securities owned such registration statement has been filed; and
(ix) after such registration statement becomes effective, notify the Investor of any request by each applicable Holder, and under the SEC that the Company amend or supplement such circumstancesregistration statement or prospectus. In addition, the Company will not be subject to the payment shall ensure that, at all times after any registration statement covering a public offering of Liquidated Damages in Section (c). In the event securities of the Company amends under the Initial Registration Statement or files a New Registration StatementSecurities Act shall have become effective, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such its i▇▇▇▇▇▇ ▇▇▇▇▇▇’s prior written consent.
(b) The Company ▇ policy shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event provide that the Company’s failure to obtain the effectiveness directors may implement a trading program under Rule 10b5-1 of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)Exchange Act.
Appears in 1 contract
Mandatory Registration. (a) On or prior to before the Filing Deadlineforty-fifth (45th) day following Closing, the Company shall, following the written request of the Registration Rights Purchasers, shall prepare and file with the Commission a Registration Statement on Form S-3 as a "shelf" registration statement under Rule 415 covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation at least 200% of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number shares of Registrable Securities then issuable on conversion of all of the Preferred Shares issued at the Closing. The Registration Statement shall state, to the extent permitted by Rule 416 under the Securities Act, that it also covers such indeterminate number of shares of Common Stock as may be registered on such required to effect conversion of the Preferred Shares to prevent dilution resulting from stock splits, stock dividends or similar events, or by reason of changes in the Conversion Price in accordance with the terms of the Certificate.
(b) The Company shall use its best efforts to cause the Registration Statement to become effective as soon as practicable following the filing thereof, but in no event later than the Registration Deadline, and shall submit to the Commission, within five (5) business days after the Company learns that no review of the Registration Statement will be reduced pro rata made by the staff of the Commission or that the staff of the Commission has no further comments on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, a request for acceleration of the Company will use reasonable and customary efforts to file with effectiveness of the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by a time and date not later than forty-eight (48) hours after the Commission as soon as practicablesubmission of such request, and, with respect to and maintain the Initial effectiveness of the Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier to occur of (i) such time as the date on which all of the Registrable Securities covered by such Required Registration Statement have been sold by pursuant to the Holders; Registration Statement and (ii) the date that on which all of the remaining Registrable Securities covered by such Required Registration Statement (in the reasonable opinion of counsel to the Purchaser) may be immediately sold to the public without registration and without regard to the amount of Registrable Securities which may be sold by a Holder thereof at a given time (the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness "Registration Period”"). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: If (iA) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission on or before the Registration Deadline, (or otherwise does B) after the Registration Statement has been declared effective by the Commission, sales of Registrable Securities cannot become effective) be made by a Holder under the Registration Statement for any reason on or prior to not within the Effectiveness Deadline, or exclusive control of such Holder (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell other than such Registrable Securities (other than during an Allowable Grace Periodas are then freely saleable pursuant to Rule 144(k) under the Securities Act), (ivC) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, Common Stock is not included for quotation on the Nasdaq Stock Market ("Nasdaq") or (v) listed on the New York Stock Exchange or other national securities exchange at any time after the Filing Registration Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as (a penalty (“Liquidated Damages”), "Registration Default Payment") equal to 3.0% the lesser of (x) two percent (2%) per month and (y) the highest rate permitted by applicable law, times the Liquidation Preference (as defined in the Certificate) of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities Preferred Shares held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, accruing daily and compounded monthly, from the Registration Deadline or, where the Registration Statement has become effective, from the date on which the Registration Statement lapses or is otherwise unavailable, or the from the date on which Common Stock is no longer so quoted or listed, until the date on which the Registration Statement is declared effective or becomes available for sales of Registrable Securities or the date on which the Common Stock is included for quotation on Nasdaq or such other national securities exchange, as the case may be; provided, however, that if the Registration Statement is not declared effective by the Registration Deadline, and such delay is not due to a failure by the Company to use its best efforts to cause the Registration Statement to become effective, including without limitation a failure to respond promptly to comments by the Commission on the Registration Statement, the Registration Deadline shall be extended for an additional thirty (iii30) days; and provided, further, that in no event shall the aggregate of all Registration Default Payments made by the Company hereunder exceed three million dollars ($3,000,000). The Registration Default Payments paid or payable by the Company hereunder shall be in addition to any other remedies available to a Holder at law or in equity or pursuant to the event it is unable to lawfully sell terms of the Certificate or any of its Registrable Securities other Transaction Document. Registration Default Payments shall be made within five (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period5) because of possession of material non-public information or (iv) with respect to any period days after the expiration end of the Effectiveness Period each period that gives rise to such obligation, provided that, if any such period extends for more than thirty (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c30) in full within ten (10) Business Days after the date payabledays, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement payments shall be extended without default or Liquidated Damages hereunder in made at the event that the Company’s failure to obtain the effectiveness end of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)each thirty-day period.
Appears in 1 contract
Sources: Registration Rights Agreement (Igen International Inc /De)
Mandatory Registration. (a) On or prior to the Filing Deadline, the The Company shall, following the written request of the Registration Rights Purchasers, prepare and shall file with the Commission a SEC, no later than April 15, 2025 (the “Filing Date”), an initial Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution maximum number of Registrable Securities as shall be permitted to be included thereon (in such amounts as to the specific Registrable Securities included therein as identified by such Investor and its legal counsel) in accordance with applicable SEC rules, regulations and interpretations so as to permit the sale and/or resale of such Registrable Securities by the Investors, including but not limited to under Rule 415 under the Securities Act at then prevailing market prices (and not fixed prices), as mutually determined by both the Company may reasonably determine and the Investors in consultation with their respective legal counsel (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the The Initial Registration Statement as required by shall register only the Commission and/or (B) withdraw Registrable Securities. The Company shall use its reasonable best efforts to have the Initial Registration Statement and file a new registration statement any amendment thereto declared effective by the date that is three (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to 3) days after the Company to register for resale receives notification (orally or in writing) from the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if SEC that the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Initial Registration Statement will not be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company reviewed or will not be subject to further review by the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration StatementsDeadline”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to its Filing Date (if the Company files the Initial Registration Statement without affording the Investors the opportunity to review and comment on the same as required by Section 3(b) herein or the Company subsequently withdraws the filing of the Registration Statement, the Company shall be deemed to have not satisfied this clause (i) as of the Filing DeadlineDate), or (ii) the Initial Company fails to file with the SEC a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the SEC pursuant to the Securities Act, within five Trading Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the New SEC that such Registration Statement will not be “reviewed” or will not be subject to further review, or (iii) prior to the effective date of a Registration Statement, as applicablethe 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, or (iv) a Registration Statement registering for resale all of the Registrable Securities is not declared effective by the Commission SEC by the Registration Deadline of the Initial Registration Statement (or otherwise provided that, if the Registration Statement does not become effectiveallow for the resale of Registrable Securities at prevailing market prices (i.e., only allows for fixed price sales), the Company shall have been deemed to have not satisfied this clause) for any reason on or prior to the Effectiveness Deadline, or (iiiv) after its Effective Datethe effective date of a Registration Statement, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effectiveincluded in such Registration Statement, or (B) the Holders Investors are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, for more than ten (10) consecutive calendar days or more than an aggregate of fifteen (15) calendar days (which need not be consecutive calendar days) during any 12-month period (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and”, and for purposes of clauses (i), ) and (ii), (iii) or (viv), the date on which such Event occurs, or and for purposes purpose of clause (ivii) the date on which such Allowable Grace Period five (5) Trading Day period is exceeded, and for purpose of clause (iii) the date which such ten (10) calendar day period is exceeded, and for purpose of clause (v) the date on which such ten (10) or fifteen (15) calendar day period, as applicable, is exceeded being referred to as an “Event Date”), then then, in addition to any other rights the Holders Investors may have hereunder or under applicable law, on the first each such Event DateDate and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder Investor an amount in cash, as partial liquidated damages and not as a penalty (“Liquidated Damages”)penalty, equal to 3.0the product of 2.0% of multiplied by the aggregate purchase price Subscription Amount paid by such Holder Investor pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages partial liquidated damages pursuant to this Section (c) in full within ten (10) Business Days seven days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder thereon at a rate of 0.518% per month on an annualized basis annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holdersuch Investor, accruing daily from the date such Liquidated Damages partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. With respect The partial liquidated damages pursuant to a Holder, the Effectiveness Deadline for a Required Registration Statement terms hereof shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement apply on a timely daily pro rata basis results from for any portion of a month prior to the failure cure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)an Event.
Appears in 1 contract
Sources: Registration Rights Agreement (Jaguar Health, Inc.)
Mandatory Registration. (a) Promptly following the Closing, the Company shall complete preparation of a Registration Statement on Form S-3 or other available form covering at least 3,700,000 shares of Common Stock as Registrable Securities. On or prior to the Filing DeadlineMarch 1, the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date1997, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant furnish to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by Investors and their legal counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness draft of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with which meets the requirements of the Securities Act Act. On or prior to March 17, 1997, the Company shall file such Registration Statement with the SEC, which Registration Statement shall state that, in accordance with Rule 416 under the Securities Act, such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the Note to prevent dilution resulting from stock splits, stock dividends or similar transactions or by reason of changes in the conversion price of the Note in accordance with the terms thereof. If at any time the number of shares of Common Stock included in the Registration Statement required to be filed as provided in the first sentence of this Section 2(a) shall be insufficient to cover the number of shares of Common Stock issuable on conversion in full of the unconverted principal amount of the Note, then promptly, but in no event later than 20 days after such insufficiency shall occur, the Company shall file with the SEC an additional Registration Statement on Form S-3 or other applicable form (which shall not constitute a post-effective amendment to the Registration Statement filed pursuant to the first sentence of this Section 2(a) but which may, in which case accordance with Rule 429 under the Effectiveness Deadline would Securities Act, make use of a combined prospectus) covering such number of shares of Common Stock as shall be extended sufficient to permit such conversion. For all purposes of this Agreement (other than Section 2(c) hereof) such additional Registration Statement shall be deemed to be the Registration Statement required to be filed by the Company pursuant to Section 2(a) of this Agreement, and the Company and the Investors shall have the same rights and obligations (other than Section 2(c) hereof) with respect to Registrable Securities held such additional Registration Statement as they shall have with respect to the initial Registration Statement required to be filed by such Registration Rights Purchaserthe Company pursuant to this Section 2(a).
Appears in 1 contract
Sources: Note Purchase Agreement (International Standards Group Limited)
Mandatory Registration. (a) On or prior to the each Filing DeadlineDate, the Company shall, following the written request of the Registration Rights Purchasers, shall prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities that are not already covered by then registered on an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers 415. The Initial Registration Statement filed hereunder shall be on Form S-1 and sales shall contain (unless otherwise directed by H▇▇▇▇▇) substantially the form of the “Plan of Distribution” attached hereto as Annex A and substantially in the form of the “Selling Stockholder” section attached hereto as Annex B; provided, however, that Holder shall not be required to be named as an “underwriter” without Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercially reasonable efforts to cause a Registration Statement filed under this Agreement (including, without limitation, under Section 3(c)) to be declared effective under the Securities Act as promptly as possible after the filing thereof, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until the earlier of the date that all Registrable Securities, Securities covered by such other means of distribution of Registrable Securities as Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company may reasonably determine to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the Holder (the “Initial Registration StatementEffectiveness Period”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) on a Trading Day. The Company shall promptly notify the Holder via facsimile or by e-mail of the effectiveness of a Registration Statement on the same Trading Day that the Company telephonically confirms effectiveness with the Commission, which shall be the date requested for effectiveness of such Registration Statement. The Company shall file a final Prospectus with the Commission as required by Rule 424 within the time period required by Rule 424.
(b) Notwithstanding the registration obligations set forth in this Section 22(a), in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) if the Commission informs the Company that all such of the Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or and use its commercially reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”)Commission, in each case covering the maximum number of such Registrable Securities permitted to be registered thereonby the Commission, on Form S-1 or such other form available to the Company to register for resale the Registrable Securities as a secondary offering. , subject to the provisions of Section 2(d); with respect to filing on Form S-1 or other appropriate form; provided, however, that prior to filing such amendment, the Company shall be obligated to use commercially reasonable efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09.
(c) Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel Commission or any SEC Guidance sets forth a limitation of on the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offeringoffering (and notwithstanding that the Company used reasonable efforts to advocate with the Commission for the registration of all or a greater portion of Registrable Securities), unless otherwise directed in writing by a Holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstancesas follows:
a. First, the Company will not shall reduce or eliminate any securities to be subject included other than Registrable Securities;
b. Second, the Company shall reduce Registrable Securities represented by Warrant Shares (applied, in the case that some Warrant Shares may be registered, to the payment Holders on a pro rata basis based on the total number of Liquidated Damages unregistered Warrant Shares held by such Holders); and
c. Third, the Company shall reduce Registrable Securities represented by Shares (applied, in Section the case that some Shares may be registered, to the Holders on a pro rata basis based on the total number of unregistered Shares held by such Holders). In the event of a cutback hereunder, the Company shall give the Holder at least five (c)5) Trading Days prior written notice along with the calculations as to such H▇▇▇▇▇’s allotment. In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as in accordance with the case may be, under clauses (A) or (B) aboveforegoing, the Company will use its commercially reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on Form S-1 or such other form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(bd) The If Form S-1 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all register the resale of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; on another appropriate form and (ii) undertake to use commercially reasonable efforts to register the date that all Registrable Securities covered by on Form S-1 when such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144form becomes available, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, provided that the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-1 covering the Registrable Securities has been declared effective by the Commission.
(e) The Company undertakes to use commercially reasonable efforts to register the Registrable Securities on Form S-3 when such form becomes available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a timely basis results from Registration Statement on Form S-3 covering the failure Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as an underwriter without the prior written consent of such Holder (such consent not to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaserunreasonably withheld or delayed).
Appears in 1 contract
Mandatory Registration. (a) On The Company shall prepare, and, on or prior to the Filing Deadlinedate (the "FILING DATE") which is forty-five (45) days after the Closing Date under the Securities Purchase Agreement (the "CLOSING DATE"), the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission SEC a Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 Form SB-2 or Form S-1 (or, if Rule 415 Form SB-2 or Form S-1 is not then available, on such form of Registration Statement as is then available for offers and sales to effect a registration of the Registrable Securities, by such other means subject to the consent of distribution the Initial Investors, which consent will not be unreasonably withheld) covering the resale of the Registrable Securities as the Company may reasonably determine (the “Initial Securities, which Registration Statement”, to the extent allowable under the 1933 Act and the rules and regulations promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of or otherwise pursuant to the Debentures and/or the Preferred Shares (including, but not limited to, shares issued or issuable upon exercise of the Investment Options) and exercise of or otherwise pursuant to the Warrants to prevent dilution resulting from stock splits, stock dividends or similar transactions. Notwithstanding The number of shares of Common Stock initially included in such Registration Statement shall be no less than two (2) times the registration obligations set forth in this Section 2, in the event that sum of (i) the Company’s counsel determines aggregate number of Conversion Shares that all such Registrable Securities cannot, as a result are then issuable upon conversion of or otherwise pursuant to the Debentures and/or the Preferred Shares (including upon exercise of the application Investment Options under the Debentures and/or the Preferred Shares) (in each case based on the lesser of Rule 415, be registered for resale Variable Conversion Price and the Fixed Conversion Price (each as a secondary offering on a single registration statement prior to filing defined in the Initial Registration Statement, or Debentures and the Certificate of Designation) then in effect) and (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result Warrant Shares issuable upon exercise of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments otherwise pursuant to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”)Warrants, in each case covering without regard to any limitation on the Investor's ability to convert the Debentures and/or Preferred Shares or exercise the Warrants. The Company acknowledges that the number of shares initially included in the Registration Statement represents a good faith estimate of the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion shares issuable upon conversion of the Company’s counsel or any SEC Guidance sets forth a limitation Debentures and/or the Preferred Shares (including exercise of the number Investment Options under the Debentures and/or the Preferred Shares) and exercise of Registrable Securities permitted to be registered on a particular the Warrants. The Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by (and each applicable Holderamendment or supplement thereto, and under such circumstances, the Company will not each request for acceleration of effectiveness thereof) shall be provided to (and subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (iapproval of) the Initial Registration Statement is not filed with the Commission on or Investors and their counsel prior to the Filing Deadline, (ii) the Initial Registration Statement its filing or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)submission.
Appears in 1 contract
Mandatory Registration. (a) On or prior The Company shall use its best efforts to the Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, ----------------------- prepare and file with the Commission SEC a Registration Statement on Form S- I covering the resale of all of the Registrable Securities as soon as practicable after the date hereof, but in any event not already covered by an existing later than the date (the "FILING DATE") -which is thirty (30) days after the date of the Closing under the Securities Purchase Agreement (the "Closing Date"). Such Registration Statement, to the extent allowable under the 1933 Act and effective the rules and regulations promulgated thereunder (including Rule 416), shall state that such Registration Statement for an offering to be made on a continuous basis also covers such indeterminate number Of additional shares of Common Stock as may become issuable upon conversion of or otherwise pursuant to Rule 415 orthe Debentures'(including, if Rule 415 is but not available for offers and sales limited to, shares issued or issuable upon exercise of the Registrable SecuritiesInvestment Options) and upon exercise of or otherwise pursuant to the Warrants to prevent dilution resulting from stock splits, by stock dividends or similar transactions. The number of shares of Common Stock initially included in such other means Registration Statement shall be no less than two (2) times the sum of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines aggregate number of Conversion Shares that all such Registrable Securities cannot, as a result are then issuable upon conversion of or otherwise pursuant to the Debentures (including upon exercise of the application Investment Options thereunder) (in each case based on the lesser of Rule 415the Variable Conversion Price and the Fixed Conversion Price (each as defined in the Debentures) then in effect), be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or and (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result number of the application Warrant Shares issuable upon exercise of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments otherwise pursuant to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”)Warrants, in each case covering without regard to any limitation on the Investor's ability to convert the Debentures or exercise the Warrants. The Company acknowledges that the number of shares initially included in the Registration Statement represents a good faith estimate of the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision shares issuable upon conversion of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Debentures (including upon exercise of the Investment Options thereunder) and upon exercise of the Warrants. The Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or included in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder allocated to the Investors as set forth in the event that the Company’s failure to obtain the effectiveness of the Section 11 (k) hereof. The Registration Statement on a timely basis results from (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to (and subject to the failure of such Holder approval of) the Initial Investors and its counsel prior to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)its filing or other submission.
Appears in 1 contract
Mandatory Registration. (ai) On The Company shall prepare and file with the SEC, as soon as possible after the Closing Date and no later than thirty (30) days following the Closing Date (the "Required Filing Date"), either a Registration Statement or prior an amendment to an existing Registration Statement, in either event registering for resale by the Filing DeadlineHolders a sufficient number of shares of Common Stock for the Holders to sell the Registrable Securities (or such lesser number as may be required by the SEC, but in no event less than one hundred fifty percent (150%) of the aggregate number of shares (A) into which the relevant Warrants would be convertible at the time of filing of such Registration Statement (assuming for such purposes that all such Warrants had been eligible to be converted, and had been converted, into Registrable Securities in accordance with their terms, whether or not such accrual of interest, eligibility or conversion had in fact occurred as of such date). The Registration Statement (W) shall include the Registrable Securities and (X) shall also state that, in accordance with Rule 416 and 457 under the Securities Act, it also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the Warrants to prevent dilution resulting from stock splits or stock dividends. The Company will use its reasonable efforts to cause such Registration Statement to be declared effective on a date (a "Required Effective Date") no later than ninety (90) days after the Closing Date.
(ii) If at any time (an "Increased Registered Shares Date"), the number of shares of Common Stock represented by the Registrable Securities, issued or to be issued as contemplated by the Transaction Agreements, exceeds the aggregate number of shares of Common Stock then registered, the Company shall, following within ten (10) business days after receipt of a written notice from any Holders, either (X) amend the written request of the Registration Rights Purchasers, prepare and file with the Commission a relevant Registration Statement covering filed by the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis Company pursuant to Rule 415 or, if Rule 415 is not available for offers and sales the preceding provisions of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in if such Registration Statement has not been declared effective by the event SEC at that time, to register one hundred ten percent (110%) of such Registrable Shares, computed as contemplated by the immediately preceding subparagraph (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement), or (iiY) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on has been declared effective by the basis SEC at that time, file with the SEC an additional Registration Statement (an "Additional Registration Statement") to register one hundred ten percent (110%) of the shares of Common Stock represented by the Registrable Shares, computed as contemplated by the immediately preceding subparagraph (i), that exceed the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the shares of Common Stock already registered. The Company will not be subject use its reasonable efforts to cause the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial amended Registration Statement or files a New the Additional Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, on a date (a "Required Effective Date") which is no later than ninety (90) days after the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Increased Registered Shares Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 1 contract
Mandatory Registration. Within 45 days following the Closing Date (a) On or prior to the Filing Deadline"FILING DEADLINE"), the Company shallshall file with the United States Securities and Exchange Commission ("SEC") a Registration Statement on Form S-3 (or, following the written request if Form S-3 is not then available, on such form of Registration Statement as is then available) to effect a registration of all of the Registrable Securities, covering the resale of at least 7,825,000 shares of Common Stock, which Registration Rights PurchasersStatement, to the extent allowable under the Securities Act and the rules promulgated thereunder shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable to prevent dilution resulting from stock splits, stock dividends or similar transactions (the "INITIAL REGISTRATION STATEMENT"). The Registrable Securities included in the Initial Registration Statement shall be registered on behalf of the Investors as set forth in Section 11(k) hereof. The Initial Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to (and subject to the review by) the Initial Investors and their counsel at least five (5) business days prior to its filing or other submission. If for any reason (including, but not limited to, a determination by the staff of the SEC that all or any portion of the Shares or any other Registrable Securities cannot be included in the Initial Registration Statement (an "SEC DETERMINATION")) the Initial Registration Statement declared effective by the SEC does not include all of the Registrable Securities (any such shares that are not included being the "UNCOVERED SHARES"), the Company shall prepare and file with the Commission a Registration Statement covering the resale of all SEC, as soon as practicable, but in any event within 30 days after becoming aware of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering existence of any Uncovered Shares (such date referred to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities herein as the Company may reasonably determine "UNCOVERED SHARE FILING DEADLINE"), either (a) an amendment (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i"UNCOVERED SHARES AMENDMENT") the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by effecting a registration of the Commission and/or Uncovered Shares or (Bb) withdraw a registration statement which registers the Uncovered Shares (the "UNCOVERED SHARES REGISTRATION STATEMENT"). The Uncovered Shares Amendment or the Uncovered Shares Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to the Initial Investors and their counsel for review and comment at least three (3) business days prior to its filing or other submission. The Company shall use its best efforts to cause each of the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, Uncovered Shares Amendment or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Uncovered Shares Registration Statement to be declared become effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)filing thereof.
Appears in 1 contract
Sources: Registration Rights Agreement (Gadzoox Networks Inc)
Mandatory Registration. (ai) On Following the date on which any Warrants are issued pursuant to the Facility Agreement (each, an “Issuance Date”), the Company shall prepare, and, on or prior to the applicable Filing Deadline (as defined above) file with the SEC a Registration Statement (the “Mandatory Registration Statement”) on Form S-3 (or, if Form S-3 is not then available, on such form of Registration Statement as is then available to effect a registration of the Registrable Securities, subject to the consent of the Buyers, which consent will not be unreasonably withheld) covering the resale of the Registrable Securities issued on the applicable Issuance Date (as defined below) which Registration Statement, to the extent allowable under the Securities Act and the rules and regulations promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon exercise of or otherwise pursuant to the Warrants to prevent dilution resulting from stock splits, stock dividends, stock issuances or similar transactions. The number of shares of Common Stock initially included in such Registration Statement shall be no less than the aggregate number of Warrant Shares that are then issuable upon exercise of or otherwise pursuant to the Warrants issued on the Issuance Date, without regard to any limitation on the Buyers’ ability to exercise the Warrants, respectively. Each Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to (and subject to the approval of) the Buyers and their counsel prior to its filing or other submission.
(ii) If for any reason the SEC does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a)(i) above, or for any other reason any Registrable Securities are not then included in a Registration Statement filed under this Agreement, then the Company shall prepare, and, as soon as practicable but in no event later than the Additional Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission a SEC an additional Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 1 contract
Sources: Registration Rights Agreement (Titan Pharmaceuticals Inc)
Mandatory Registration. (a) On or prior to the Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, shall prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, then the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use its commercially reasonable and customary best efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering; provided, that in the case of (ii) above, prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its commercially reasonable best efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Securities Act Rules Compliance and Disclosure Interpretation 612.09, or any successor thereto. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offeringoffering (and, in the case of clause (ii) above, notwithstanding that the Company used commercially reasonable best efforts to advocate with the Commission for the registration of all or a greater number but less than all of Registrable Securities), the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c2(c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use its commercially reasonable and customary best efforts to file with the Commission, as promptly as allowed by the Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned.
(b) The Company shall use its commercially reasonable and customary best efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use its commercially reasonable and customary best efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been publicly sold by the Holders; Holders or (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; agent (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 5:00 p.m., Philadelphia New York City time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, Date unless already available on the Commission’s ▇▇▇▇▇ site filing system or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Company fails to file with the Commission any required reports under Section 13 or 15(d) of the Exchange Act such that it is not in compliance with Rule 144(c)(1) (or Rule 144(i)(2), if applicable), as a result of which the Holders who are not affiliates are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first each such Event DateDate and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.01.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Investment Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Investment Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c2(c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. The Liquidated Damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Event, except in the case of the first Event Date. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights PurchaserHolder).
Appears in 1 contract
Sources: Registration Rights Agreement (Third Coast Bancshares, Inc.)
Mandatory Registration. (a) On or prior to The Company shall prepare, and, as soon as practicable but in no event later than 30 days after the Filing Deadline, the Company shall, following the written request date of issuance of the Registration Rights PurchasersPreferred Shares, prepare and file with the Commission SEC a Registration Statement or Registration Statements (as is necessary) on Form S-3 (or, if such form is unavailable for such a registration, on such other form as is available for such a registration, subject to the consent of the Investors holding a majority of the Registrable Securities and the provisions of Section 2(c), which consent will not be unreasonably withheld), covering the resale of all of the Registrable Securities not already covered by an existing and effective Securities, which Registration Statement for an offering to be made on a continuous basis pursuant to Statement(s) shall state that, in accordance with Rule 415 or416 promulgated under the 1933 Act ("RULE 416"), if Rule 415 is not available for offers and sales such Registration Statement(s) also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the Registrable Securities, by such other means Preferred Shares and exercise of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that Warrants (i) the Company’s counsel determines that all such Registrable Securities cannotto prevent dilution resulting from stock splits, as a result of the application of Rule 415stock dividends or similar transactions, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or and (ii) if permitted by law, by reason of changes in the Commission informs the Company that all such Registrable Securities cannot, as a result Conversion Price or Conversion Rate of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, Preferred Shares in accordance with the Company agrees to promptly (A) inform each terms of the Holders thereof and, as applicable, file Certificate of Designations or changes in the Initial Registration Statement, or use reasonable and customary efforts to file amendments to number of Warrant Shares issuable upon exercise of the Initial Warrants in accordance with the terms of the Warrants. Such Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to shall initially register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision number of this Agreement, if the opinion shares of the Company’s counsel or any SEC Guidance sets forth a limitation Common Stock equal to at least 200% of the number of Registrable Securities permitted to be registered on a particular Conversion Shares issued and issuable and 150% of the number of Warrant Shares issued and issuable as of the business day immediately preceding the date the Company files the Registration Statement (without regard to any limitations on conversions or exercises), subject to adjustment as a secondary offering, provided in Section 3(b). Such registered shares of Common Stock shall be allocated among the Investors pro rata based on the total number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis issued or issuable as of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files date that a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or relating to the New Registration Statement (resale of the “Remainder Registration Statements”)Registrable Securities is declared effective by the SEC. No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary its best efforts to cause each Required have the Registration Statement to be Statement(s) declared effective by the Commission SEC as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, but in no event later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) 90 days after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as issuance of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)Preferred Shares.
Appears in 1 contract
Mandatory Registration. (a) On The Company shall prepare, and, on or prior to the Filing Deadline, date which is thirty (30) days after the Company shall, following the written request date of the Registration Rights PurchasersFirst Closing under the Securities Purchase Agreement (the "CLOSING DATE"), prepare and file with the Commission SEC a Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 Form S-3 (or, if Rule 415 Form S-3 is not then available, on such form of Registration Statement as is then available for offers and sales to effect a registration of the Registrable Securities, subject to the consent of the Initial Investors, which consent will not be unreasonably withheld) and pursuant to Rule 415 covering the resale from time to time by such other means the holders thereof of distribution of the Registrable Securities as the Company may reasonably determine (the “Initial Securities, which Registration Statement”, to the extent allowable under the 1933 Act and the rules and regulations promulgated thereunder (including Rule 416). Notwithstanding , shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon exercise of the registration obligations set forth in this Section 2Warrants (i) to prevent dilution resulting from stock splits, stock dividends or similar transactions or (ii) by reason of changes in the event that exercise price of the Warrants in accordance with the terms thereof. The number of shares of Common Stock initially included in such Registration Statement shall be no less than the sum of (i) the Company’s counsel determines that all such Registrable number of Common Shares issued and/or issuable pursuant to the Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or Purchase Agreement and (ii) two (2) times the Commission informs the Company number of Warrant Shares that all such Registrable Securities cannot, as a result are issuable upon exercise of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments Warrants issued and/or issuable pursuant to the Initial Securities Purchase Agreement, without regard to any limitation on the Investor's ability to exercise the Warrants. The Company acknowledges that the number of Warrant Shares initially included in the Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file represents a new registration statement (a “New Registration Statement”), in each case covering good faith estimate of the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion shares issuable upon exercise of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consentWarrants.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 1 contract
Mandatory Registration. (a) 1.1 On or prior before October 31, 2020, the Company agrees to file with the Commission in accordance with the procedures set forth in Section 2, a resale registration statement on Form F-1, Form F-3 or such other form under the Securities Act then available to the Filing DeadlineCompany providing for the resale pursuant to Rule 415 from time to time by the Purchasers of any and all Registrable Shares issued or issuable (including a prospectus, amendments and supplements to such registration statement, including pre- and post-effective amendments, all exhibits thereto and all material incorporated by reference or deemed to be incorporated by reference, if any, in such registration statement, the “Mandatory Registration Statement”). The Company agrees to use its reasonable best efforts to cause the Commission to declare any Mandatory Registration Statement effective as soon as practicable after the filing thereof and in any event within ninety (90) days of the initial filing of such Mandatory Registration Statement with the Commission. The Company shall use its reasonable best efforts to cause any Mandatory Registration Statement (or, if applicable, a Shelf Registration Statement (as defined below)) to remain continuously effective until the Termination Date (as defined below). Any Mandatory Registration Statement shall provide for the resale from time to time, and pursuant to any method or combination of methods legally available to, and requested by, the Purchaser(s) of the Registrable Shares.
1.2 At any time after the Company becomes eligible to use a shelf registration statement on Form F-3 (a “Shelf Registration Statement”), the Company shall, following in accordance with the written request procedures set forth in Section 1, have the option to file a Shelf Registration Statement (whether such registration statement is filed by the Company on its own account or on account of one or more third persons), or a post-effective amendment on Form F-3 to the Mandatory Registration Statement (including a prospectus, amendments and supplements to such registration statement, including pre- and post-effective amendments, all exhibits thereto and all material incorporated by reference or deemed to be incorporated by reference, if any, in such registration statement) covering any Registrable Shares registered under any Mandatory Registration Statement and any additional Ordinary Shares issued or distributed to Purchasers after the effectiveness of the Mandatory Registration Rights PurchasersStatement, prepare or otherwise not included in such prior Mandatory Registration Statement, on behalf of the Purchasers thereof in the same manner, and file subject to the same provisions in this Agreement as the Mandatory Registration Statement. The Company shall use its reasonable best efforts to cause such Shelf Registration Statement to be declared effective as soon as practicable, keep such Shelf Registration Statement effective with the Commission at all times (except as otherwise provided herein), file a new Shelf Registration Statement covering on Form F-3 upon its expiration and cooperate in any offering using such Shelf Registration Statement, whether or not underwritten, by amending or supplementing the resale prospectus relating to such Shelf Registration Statement as promptly as practicable following a written request by the Purchaser or as otherwise required, until the Termination Date (as defined below).
(a) Subject at all times to Section 3 hereof, at any time (i) a Purchaser owning more than forty percent (40%) of the aggregate number of Ordinary Shares issuable upon conversion of the Notes at the maturity date of the Notes and (ii) Solel Capital Partners Master Fund, L.P as long as it owns more than thirty percent (30%) of the aggregate number of Ordinary Shares issuable upon conversion of the Notes at the maturity date of the Notes (each a “Demanding Purchaser” and collectively, the “Demanding Purchasers”), may demand that the Company cooperate in an underwritten offering of Registrable Shares by delivering a notice to the Company (a “Notice”) stating that it intends to effect an underwritten offering (an “Underwritten Offering”) of all or part of its Registrable Shares; provided, however, that, each Demanding Purchaser shall only have the right to request one Fully Marketed Underwritten Offering hereunder in any rolling twelve (12) month period. Upon the Company’s receipt of a Notice, the Company shall promptly deliver such Notice to all other Purchasers and permit each Purchaser to include its Registrable Shares for offer and sale in such Underwritten Offering if such Purchaser notifies the Company within five (5) Business Days after delivery of the Notice to such Purchaser. The Demanding Purchaser that delivered the Notice with respect to such Underwriting Offering shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with any Underwritten Offering.
(b) If the managing underwriter of an Underwritten Offering advises the Company and the participating Purchasers in writing (with a copy to each party hereto requesting to participate in such underwritten offering) that in its opinion the number of Ordinary Shares which the Purchasers desire to sell, taken together with any Ordinary Shares requested to be included in such Underwritten Offering by the Company or other Purchasers, exceeds the Maximum Number of Securities, the Company will include in such Underwritten Offering any Ordinary Shares in the following priority:
(i) first, the Ordinary Shares of the Demanding Purchaser;
(ii) second, Ordinary Shares requested to be included in such Underwritten Offering by any Purchaser other than the Demanding Purchaser up to the Maximum Number of Securities, and if the aggregate number of such Registrable Shares exceeds the Maximum Number of Securities, the Company shall include only such Purchasers’ pro rata share of the Maximum Number of Securities not already covered based on the aggregate number of Registrable Shares beneficially owned by an existing such Purchasers;
(iii) third, to the Company (if applicable); and
(iv) fourth, to any other Person entitled to request the inclusion of Ordinary Shares in such Underwritten Offering.
(a) Subject to the provisions of this Section 1.3 and effective a good faith determination by the Company that it is in the best interests of the Company to suspend the use of any Registration Statement, following the effectiveness of such Registration Statement for an offering (and the filings with any international, federal or state securities commissions), the Company, by written notice to be made on a continuous basis pursuant the Purchasers, may direct the Purchasers to Rule 415 or, if Rule 415 is not available for offers and suspend sales of the Registrable Securities, by Shares pursuant to such other means of distribution of Registrable Securities Registration Statement for such times as the Company reasonably may reasonably determine is necessary and advisable (but in no event for more than 30 consecutive days, subject to extension by the “Initial Company by up to an additional 30 consecutive days solely to the extent that the Company requires such extension of time to complete financial statements required under applicable law to be contained in the Company’s filings under the Exchange Act, or 90 days in any 365-day period), if any of the following events shall occur: (i) an underwritten public offering of Ordinary Shares by the Company if the Company is advised by the underwriters of its underwritten public offering that the concurrent resale of Registrable Shares by the Purchasers pursuant to the Registration Statement”). Notwithstanding Statement would have a material adverse effect on the registration obligations set forth Company’s offering, (ii) there is material non-public information regarding the Company which (A) the Company determines not to be in this Section 2the Company’s best interest to disclose, (B) would, in the event good faith determination of the Company, require any revisions to the Registration Statement so that it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (C) the Company is not otherwise required to disclose, (iii) the Company otherwise determines in good faith that an amendment or supplement to the Registration Statement is necessary such that the Registration Statement 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 light of the circumstances under which they were made, not misleading, or (iv) the Company is required to file a post-effective amendment to a Registration Statement to incorporate the Company’s quarterly or annual reports or audited financial statements on Forms 6-K and 20-F; provided, however, that no suspension period permitted pursuant to this clause (iv) shall continue for more than five (5) consecutive Business Days.
(b) Prior to the earlier to occur of (i) the Company’s counsel determines that all such Registrable Securities cannot, Company delivering to the Purchasers an End of Suspension Notice (as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statementdefined below), or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result end of the application of Rule 415, be registered for resale as a secondary offering on a single registration statementmaximum permissible suspension period, the Company agrees shall use its commercially reasonable efforts to promptly (A) inform each amend or supplement the Registration Statement on a post-effective basis, if necessary, or to take such action as is necessary to make resumed use of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement so as required by to permit the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number Purchasers to resume sales of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission Shares as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Datepossible.
(c) If: In the case of an event that causes the Company to suspend the use of a Registration Statement (a “Suspension Event”), the Company shall give written notice (a “Suspension Notice”) to the Purchasers to suspend sales of the Registrable Shares, and such notice shall state that such suspension shall continue only for so long as the Suspension Event or its effect is continuing and the Company is taking all reasonable steps to terminate suspension of the effectiveness of the Registration Statement as promptly as possible. The Purchasers shall not effect any sales of the Registrable Shares pursuant to such Registration Statement (or such filings) at any time after it has received a Suspension Notice from the Company and prior to receipt of an End of Suspension Notice (as defined below). The Purchasers may recommence effecting sales of the Registrable Shares pursuant to the Registration Statement (or such filings) following further notice to such effect (an “End of Suspension Notice”) from the Company, which End of Suspension Notice shall be given by the Company to the Purchasers in the manner described above promptly following the conclusion of any Suspension Event and its effect.
1.5 The Company shall indemnify and hold harmless each Purchaser, each person who controls any Purchaser (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and the officers, directors, members, managers, stockholders, partners, limited partners, agents, successors, heirs, assigns, executors and employees of each of them (each an “Indemnified Party”), to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable attorneys’ fees) and expenses (collectively, “Losses”), as incurred, arising out of or relating to (a) any untrue or alleged untrue statement of a material fact contained in a Registration Statement or any prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading or (b) any violation or alleged violation by the Company of the Securities Act, the Exchange Act or any state securities law, or any rule or regulation thereunder, in connection with the performance of its obligations under this Agreement; in each case, except to the extent, but only to the extent, that (i) the Initial Registration Statement such untrue statement or omission is not filed with the Commission on or prior based upon information regarding such Purchaser furnished in writing to the Filing DeadlineCompany by or on behalf of such Purchaser expressly for use therein, or (ii) such information relates to such Purchaser or such Purchaser’s proposed method of distribution of the Initial Registrable Shares and was approved in writing by or on behalf of the Purchaser expressly for use in the Registration Statement, such prospectus or in any amendment or supplement thereto. Each Purchaser shall, severally and not jointly, indemnify and hold harmless the Company, each director of the Company, each officer of the Company who shall sign a Registration Statement, each underwriter, broker or other Person acting on behalf of the holders of securities included in a Registration Statement, and each Person who controls any of the foregoing Persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) against any Losses, as incurred, arising out of or relating to any untrue or alleged untrue statement of a material fact contained in a Registration Statement or any prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the New statements therein (in the case of any prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, but only to the extent that (i) such untrue statement or omission is based upon information regarding such Purchaser furnished in writing to the Company by or on behalf of such Purchaser expressly for use therein, or (ii) such information relates to such Purchaser or such Purchaser’s proposed method of distribution of the Registrable Shares and was approved in writing by or on behalf of the Purchaser expressly for use in the Registration Statement, as applicablesuch prospectus or in any amendment or supplement thereto. If the indemnification provided in this Section 1.4 is unavailable to an Indemnified Party or insufficient to hold the Indemnified Party harmless for any Losses, is not declared effective then the Company shall contribute to the amount paid or payable by the Commission (Indemnified Party, in such proportion as is appropriate to reflect the relative fault of the Company and such Indemnified Party in connection with the actions, statements or otherwise omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of the Company and the Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, the Company or the Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The parties hereto agree that it would not be just and equitable if any contribution were determined by pro rata allocation or by any other method of allocation that does not become effective) for take into account the equitable considerations referred to in the immediately preceding sentence. Notwithstanding the provisions of this paragraph, no Indemnified Party shall be required to contribute pursuant to this paragraph, in the aggregate, any reason on or prior amount in excess of the amount by which the net proceeds actually received by such Indemnified Party from the sale of the Registrable Shares subject to the Effectiveness Deadline, or (iii) after its Effective Date, (A) proceeding exceeds the amount of any damages that such Registration Statement ceases Indemnified Party has otherwise been required to be effective for any reason (including without limitation pay by reason of a stop order, such untrue or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to alleged untrue statement or omission or alleged omission. The provisions of this Section 1.5 shall be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders to indemnification or contribution that an indemnified party may have hereunder or under applicable pursuant to law, on equity, contract or otherwise.
1.6 The Demanding Holder initiating a Demand Registration shall have the first such Event Date, the Company shall pay right to each Holder an amount in cash, as liquidated damages and not as withdraw from a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder Registration pursuant to the Purchase Agreement such Demand Registration for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel reason whatsoever upon written notification to the Company pursuant and the managing Underwriter of their intention to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period)withdraw from such. If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on is so withdrawn, it will count as a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).Demand Registration. Notwithstanding anything
Appears in 1 contract
Sources: Registration Rights Agreement (Bioceres Crop Solutions Corp.)
Mandatory Registration. (ai) On Following the issuance of any Warrants pursuant to the Facility Agreement, the Company shall prepare, and, on or prior to the applicable Filing Deadline (as defined above) file with the SEC a Registration Statement (the “Mandatory Registration Statement”) on Form S-3 (or, if Form S-3 is not then available, on such form of Registration Statement as is then available to effect a registration of the Registrable Securities, subject to the consent of the Buyers, which consent will not be unreasonably withheld) covering the resale of the Registrable Securities issued on the applicable Issuance Date (as defined below) which Registration Statement, to the extent allowable under the Securities Act and the rules and regulations promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon exercise of or otherwise pursuant to the Warrants to prevent dilution resulting from stock splits, stock dividends, stock issuances or similar transactions. The number of shares of Common Stock initially included in such Registration Statement shall be no less than the aggregate number of Warrant Shares that are then issuable upon exercise of or otherwise pursuant to the Warrants issued on the Issuance Date (as defined herein), without regard to any limitation on the Buyers’ ability to exercise the Warrants, respectively. The Company acknowledges that the number of shares initially included in each Registration Statement represents a good faith estimate of the maximum number of shares issuable upon exercise of or otherwise pursuant to the Warrants issued on the applicable Issuance Date and shall be amended if not sufficient. Each Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to (and subject to the approval, which shall not be unreasonably withheld, of) the Buyers and their counsel prior to its filing or other submission.
(ii) If for any reason the SEC does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a)(i) above, or for any other reason any Registrable Securities are not then included in a Registration Statement filed under this Agreement, then the Company shall prepare, and, as soon as practicable but in no event later than the Additional Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission a SEC an additional Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 1 contract
Sources: Registration Rights Agreement (Ista Pharmaceuticals Inc)
Mandatory Registration. (ai) On Following the date on which any Warrants are issued pursuant to the Facility Agreement (each, an “Issuance Date”), the Company shall prepare, and, on or prior to the applicable Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and Deadline (as defined above) file with the Commission SEC a Registration Statement covering (the resale of all of the Registrable Securities not already covered by an existing and effective “Mandatory Registration Statement for an offering to be made Statement”) on a continuous basis pursuant to Rule 415 Form S-3 (or, if Rule 415 Form S-3 is not then available, on such form of Registration Statement as is then available for offers and sales to effect a registration of the Registrable Securities, by such other means subject to the consent of distribution the Buyers, which consent will not be unreasonably withheld) covering the resale of the Registrable Securities issued on the applicable Issuance Date (as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (idefined below) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial which Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by extent allowable under the Commission and/or Securities Act and the rules and regulations promulgated thereunder (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”including Rule 416), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on shall state that such Registration Statement will also covers such indeterminate number of additional shares of Common Stock as may become issuable upon exercise of or otherwise pursuant to the Warrants to prevent dilution resulting from stock splits, stock dividends, stock issuances or similar transactions. The number of shares of Common Stock initially included in such Registration Statement shall be reduced pro rata on the basis of no less than the aggregate number of Registrable Securities owned by Warrant Shares that are then issuable upon exercise of or otherwise pursuant to the Warrants issued on the Issuance Date, without regard to any limitation on the Buyers’ ability to exercise the Warrants, respectively. Each Registration Statement (and each applicable Holderamendment or supplement thereto, and under such circumstances, the Company will not each request for acceleration of effectiveness thereof) shall be provided to (and subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statementapproval, as the case may bewhich shall not be unreasonably withheld, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (iiof) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by Buyers and their counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement its filing or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)submission.
Appears in 1 contract
Sources: Registration Rights Agreement (Infinity Pharmaceuticals, Inc.)
Mandatory Registration. (a) On The Company shall prepare, and, on or prior to thirty (30) days from the Filing Deadlinedate of Closing (as defined in the Securities Purchase Agreement) (the "FILING DATE"), the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission SEC a Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 Form S-3 (or, if Rule 415 Form S-3 is not then available, on such form of Registration Statement as is then available for offers and sales to effect a registration of the Registrable Securities, by such other means subject to the consent of distribution the Initial Investors, which consent will not be unreasonably withheld) covering the resale of the Registrable Securities as underlying the Company may reasonably determine (Debentures and Warrants issued or issuable pursuant to the “Initial Securities Purchase Agreement, which Registration Statement”, to the extent allowable under the 1933 Act and the rules and regulations promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of or otherwise pursuant to the Debentures and exercise of the Warrants to prevent dilution resulting from stock splits, stock dividends or similar transactions. Notwithstanding The number of shares of Common Stock initially included in such Registration Statement shall be no less than two (2) times the registration obligations set forth in this Section 2, in the event that sum of (i) the Company’s counsel determines number of Conversion Shares that all such Registrable Securities cannot, as a result are then issuable upon conversion of the application of Rule 415, Debentures and Additional Debentures (based on the Variable Conversion Price as would then be registered for resale as a secondary offering on a single registration statement prior to filing in effect and assuming the Initial Registration Statement, or Variable Conversion Price is the Conversion Price at such time) plus (ii) the Commission informs the Company number of Warrant Shares that all such Registrable Securities cannot, as a result are then issuable upon exercise of the application Warrants and the Additional Warrants, without regard to any limitation on the Investor's ability to convert the Debentures and the Additional Debentures or exercise the Warrants and the Additional Warrants. The Company acknowledges that the number of Rule 415, be registered for resale as a secondary offering on a single registration statement, shares initially included in the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file represents a new registration statement (a “New Registration Statement”), in each case covering good faith estimate of the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion shares issuable upon conversion of the Company’s counsel or any SEC Guidance sets forth a limitation Debentures and the Additional Warrants and upon exercise of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, Warrants and the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consentAdditional Warrants.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 1 contract
Mandatory Registration. (ai) On or prior to the Filing Deadline, If a Registration Event has occurred the Company shall, following as soon as reasonably practicable after but, in any event, no later than sixty (60) days after a Registration Event (the written request of Filing Deadline), the Registration Rights Purchasers, Company shall prepare and file with the Commission SEC a Registration Statement on Form S−3 or, in the event the Company is not eligible to use Form S−3, on Form S−1, covering the resale of all of the Registrable Securities not already covered by an existing and effective Shares. Such Registration Statement also shall cover, to the extent permitted by Rule 416 under the Securities Act, such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Shares. Such Registration Statement (and each amendment or supplement thereto, and each request for an offering acceleration of effectiveness thereof) shall be provided in accordance with Section 4(c) to be made on a continuous basis pursuant the Facility Agent and its counsel prior to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such its filing or other means of distribution of Registrable Securities as the Company may reasonably determine submission.
(the “Initial Registration Statement”). ii) Notwithstanding the registration obligations set forth in this Section 22(a)(i) above, in the event that (i) the Company’s counsel determines SEC informs the Company that all such of the Registrable Securities cannot, as a result of the application of Rule 415415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement prior initially filed by the Company pursuant to filing Section 2(a)(i) above (the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement), the Company agrees to shall promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or Facility Agent and use its commercially reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission SEC and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case either case, covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to by the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement Form S−3 or Form S−1, as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c)applicable. In the event that the Company amends the Initial Registration Statement or files a New Registration Statement, as Statement in accordance with the case may be, under clauses (A) or (B) aboveforegoing, the Company will shall use its commercially reasonable and customary efforts to file with the CommissionSEC, as promptly as allowed by Commission the SEC or SEC Guidance staff guidance provided from time to time to the Company or to registrants of securities in general, one or more registration statements on Form S−3 or Form S−1, as applicable, or such other form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder ; provided, however, that the Company shall not, without the Facility Agent's prior written consent (which consent may be named as an “underwriter” in withheld, delayed or conditioned at the discretion of the Facility Agent) file or request acceleration of the effectiveness of any Registration Statement without such ▇▇▇▇▇▇’s prior written consentunder this Section 2(a) if the SEC has informed the Company in the SEC review process that the Facility Agent would be deemed an underwriter under the Securities Act in connection therewith, and the Company in so refraining from filing or requesting acceleration, shall not be in violation or breach of this Agreement.
(biii) The Subject to the forgoing, the Company shall use commercially reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to have the Initial Registration Statement or the Statement, any New Registration Statement, and any Remainder Registration Statements declared effective as applicable, no later than soon as practicable after the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”)initial filing thereof. The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via Facility Agent by facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement email as promptly as practicable, and in any event, within one (1) Business Day Day, after any such Registration Statement is declared effective and shall provide the Facility Agent with copies of any related Prospectus to be used in connection with the sale or other disposition of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Datesecurities covered thereby.
(civ) If: During the period beginning on the date of the Registration Event and ending sixty (i60) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to days after the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay refrain from filing, any registration statement other than (i) a Registration Statement filed hereunder or (ii) a registration statement on Form S−8 with respect to each Holder an amount stock option plans and agreements and stock plans then in casheffect. In addition, as liquidated damages and not as a penalty (“Liquidated Damages”)during the term of this Agreement, equal to 3.0% in no event shall the Company include any securities other than the Registrable Securities in any Registration Statement filed by the Company on behalf of the aggregate purchase price paid by such Holder Facility Agent pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as terms of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser2(a).
Appears in 1 contract
Sources: Registration Rights Agreement (Synutra International, Inc.)
Mandatory Registration. (a) On Following the Closing of any Preferred Stock pursuant to the Securities Purchase Agreement, the Company shall prepare, and, on or prior to the Initial Registration Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and Deadline (as defined above) file with the Commission a Registration Statement covering the resale on such form of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering as is then available to be made on effect a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales registration of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding ) covering the registration obligations set forth in this Section 2, in resale of the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial which Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by extent allowable under the Commission and/or 1933 Act and the rules and regulations promulgated thereunder (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”including Rule 416), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on shall state that such Registration Statement will also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of or otherwise pursuant to the Certificate of Designation and exercise of or otherwise pursuant to the Warrants to prevent dilution resulting from stock splits, stock dividends or similar transactions and shall contain (unless otherwise directed by at least a two thirds (2/3) in interest of the Holders) substantially the “Plan of Distribution” attached hereto as Annex A. The number of shares of Common Stock initially included in such Registration Statement shall be reduced pro rata on the basis no less than 150% of the aggregate number of Registrable Securities owned by each applicable HolderConversion Shares that are then issuable upon conversion of the Preferred Stock or otherwise pursuant to the Certificate of Designation (based on the Conversion Price [as defined in the Certificate of Designation] then in effect) and assuming that all Dividends that would accrue on the Preferred Stock for the immediately following 12 month period is payable in Common Stock, and under such circumstancesplus the aggregate number of Warrant Shares that are then issuable upon exercise of or otherwise pursuant to the Warrants, without regard to any limitation on the Buyer's ability to convert the Preferred Stock or exercise the Warrants (collectively, the “Target Registration Amount”). Notwithstanding the foregoing, if the Company will is advised by the staff of the Commission in a written comment letter that it is not eligible to conduct the offering of the Preferred Stock under Rule 415 promulgated under the 1933 Act because of the number of shares sought to be subject included in the Registration Statement, then the Company may reduce (an “SEC Share Reduction”) the number of shares covered by such Registration Statement to the payment maximum number which would enable the Company to conduct such offering in accordance with the provisions of Liquidated Damages in Section Rule 415 (c“Rule 415 Eligible”). In the event of an SEC Share Reduction, the inclusion of the Underlying Preferred Shares in such initial Registration Statement shall take precedence over and shall not be cut back until the following securities of the Company amends the Initial are cut back and removed from such Registration Statement or files a New Registration Statement, as (in the case may be, under clauses following order): (Ai) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants any securities of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New be included in such Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k3(r) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 1 contract
Sources: Registration Rights Agreement (VirtualScopics, Inc.)
Mandatory Registration. (a) On 2.1 The Company agrees that on or prior to each relevant Filing Date, it will file a registration statement on Form SB-2 (or on such other form appropriate for such purpose) (the Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission a Registration Statement “Mandatory Registration”) covering the resale of all the Registrable Non-Conversion Securities within 60 days of the Registrable Securities not already covered by an existing Final Closing Date.
2.2 The Company agrees that it will use its commercially reasonable efforts and effective Registration Statement for an offering will cooperate fully with the Commission to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by cause such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon promptly as practicablepossible after the filing thereof, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use including without limitation by using its commercially reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all respond to any comments of the Registrable Securities covered by such Required Registration Statement have been sold by Commission within thirty (30) calendar days following receipt of the Holders; initial comments from the Commission and within fifteen (ii15) business days following receipt of any additional comments received from the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel Commission.
2.3 Each Holder agrees to furnish to the Company pursuant a completed Questionnaire in the form attached to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) as Annex B (such time period, the a “Effectiveness PeriodSelling Holder Questionnaire”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of not be required to include in a Registration Statement within one the Registrable Non-Conversion Securities of any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least ten (110) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or trading days prior to the Filing DeadlineDate.
2.4 Notwithstanding any other provision of this Section 2, (ii) if the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which Company determines that it is required desirable in order to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance comply with the requirements of the Commission that the number of securities to be registered (including Registrable Non-Conversion Securities) in such registration be reduced, then the Company shall so advise all Holders of Registrable Non-Conversion Securities Act that would otherwise be registered pursuant hereto, and the number of shares that may be included in the registration shall be allocated to as follows: First, to the Holders of the Registrable Non-Conversion Securities sold pursuant to the Note and Restricted Stock Purchase Agreements; and second, to the Holders of the Company’s securities to whom the Company has granted, prior to the date hereof, or does grant, after the date hereof, rights to registration, in each case on a pro rata basis (in which case as nearly as practicable) based on the Effectiveness Deadline would be extended with respect to number of Registrable Non-Conversion Securities or other securities held by all such Registration Rights Purchaser)Holders; provided, however, that none of the Company’s securities held by officers and directors shall be included in such registration unless and until all Registrable Non-Conversion Securities requested to be included in such registration are in fact included.
Appears in 1 contract
Sources: Registration Rights Agreement (Catcher Holdings, Inc)
Mandatory Registration. (a) On or prior to the Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, shall prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (Ai) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use its commercially reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (Bii) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each either case covering the maximum number of such Registrable Securities permitted to be registered thereonby the Commission, on such form available to the Company to register for resale the Registrable Securities as a secondary offering; provided, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its commercially reasonable efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with applicable SEC guidance, including without limitation, Securities Act Rules Compliance and Disclosure Interpretation 612.09, or any successor thereto. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offeringoffering (and notwithstanding that the Company used commercial reasonable efforts to reasonably advocate with the Commission for the registration of all or a greater number of Registrable Securities), the number of Registrable Securities to be registered on such Registration Statement will be reduced on a pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holdersuch person, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c9(i). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (Ai) or (Bii) above, the Company will use its commercially reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇Holder’s prior written consent, which shall not be unreasonably withheld.
(b) The Company shall use its commercially reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use its commercially reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been publicly sold by the Holders; Holders or (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions limitation under Rule 144144 (other than the current public information requirement set forth in Rule 144(c) so long as the requirements in Rule 144(c)(1) are satisfied), as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; agent (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 5:00 p.m., Philadelphia New York City time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) For the Initial Registration Statement is not filed avoidance of doubt, with the Commission respect to any Shares that cease to be Registrable Securities on or prior to the Filing Deadline, (ii) the Initial Registration Statement Deadline or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or then the Company’s failure obligations under Section 2(a) and (b) shall be immediately suspended. In the event that any of the Shares that ceased to update the Registration Statement), to remain continuously effective as to all be Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such become Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”)again, then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agentobligations under Section 2(a) and (b) shall be immediately reinstated, (ii) to a Holder causing an Event with the Filing Deadline being extended by the number of days that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration all of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted Shares ceased to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)Securities.
Appears in 1 contract
Sources: Registration Rights Agreement (Business First Bancshares, Inc.)
Mandatory Registration. (a) On or prior The Company has agreed to the Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission a Registration Statement covering with the SEC no later than January 31, 1998 for the purpose of facilitating the public resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Restricted Stock. The Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or shall use reasonable and customary its best efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on have such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consentdeclared effective.
(b) The Company shall use reasonable and customary efforts be entitled to cause each Required include in any Registration Statement referred to be declared effective by the Commission as soon as practicablein Subparagraph (a) of this Paragraph 2, and, with respect shares of Common Stock to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume Company for its own account (or manner by other holders of sale restrictions under Rule 144Common Stock, as determined by counsel to if all shares which the Company pursuant wishes to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities register for its own account have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”been included). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (iThe Company's obligation in Subparagraph 2(a) the Initial Registration Statement is not filed with the Commission on or prior above extends only to the Filing Deadline, (ii) the Initial Registration Statement or the New use of all reasonable efforts to register such shares pursuant to a Registration Statement, as applicable, is not declared effective . The Company shall have no obligation whatsoever to indemnify or hold harmless the Holder or any underwriter or managing underwriter designated by the Commission (Holder, to cooperate with such underwriter, or otherwise does not become effective) for any reason on or prior to obtain a commitment from an underwriter relative to the Effectiveness Deadlinesale of such shares, whether in a public offering or (iii) after private placement transaction. Furthermore, should the Company elect to include certain shares for its Effective Date, (A) own account or for the account of other shareholders in such Registration Statement ceases pursuant to Subparagraph 2(b) above, and should such shares be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable subject to a Required Registration Statement exceeds the length of commitment from an Allowable Grace Period, underwriter relative to a public or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Dateprivate offering, the Company shall pay have no obligation to each include the shares of Restricted Stock being registered pursuant to Subparagraph 2(a) hereof in such underwritten offerings. Furthermore, the Holder an amount in cashregistering his shares hereby agrees, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter condition precedent to such effectregistration, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance a certificate or certificates evidencing compliance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)and all applicable rules and regulations thereunder.
Appears in 1 contract
Sources: Registration Rights Agreement (Fountain Pharmaceuticals Inc)
Mandatory Registration. (a) On or prior to before the Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, shall prepare and file with the Commission a Registration Statement on Form S-3 as a "shelf" registration statement under Rule 415 covering the resale of 1,000,000 Conversion Shares with respect to the Series C-1 Preferred Stock, 500,000 Warrant Shares with respect to the Series C-1 Warrant, 1,000,000 Conversion Share with respect to the Series C-2 Preferred Stock, 200,000 Warrant Shares with respect to the Series C-2 Warrant and all of the Registrable Securities not already covered conversion shares with respect to the Notes outstanding, the warrant shares with respect to the Note Warrant, the conversion shares with respect to the B-2 Preferred Stock outstanding, the warrant shares with respect to the B-2 Warrant and the shares of Common Stock currently outstanding and held by an existing and effective the Purchaser. The Registration Statement for an offering shall state, to the extent permitted by Rule 416 under the Securities Act, that it also covers such indeterminate number of shares of Common Stock as may be made on a continuous basis pursuant required to Rule 415 or, if Rule 415 is not available for offers and sales effect conversion of the Registrable SecuritiesPreferred Stock and Warrants in order to prevent dilution resulting from stock splits, stock dividends or similar events.
(b) The Company shall use its best efforts to cause the Registration Statement to become effective as soon as practicable following the filing thereof, but in no event later than the Registration Deadline. The Company shall respond promptly to any and all comments made by such other means the staff of distribution of Registrable Securities as the Commission on the Registration Statement (but in no event later than fifteen (15) Business Days following the Company's receipt thereof), and shall submit to the Commission, within three (3) Business Days after the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event learns that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result no review of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata made by the staff of the Commission or that the staff of the Commission has no further comments on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses a request for acceleration of the effectiveness of the Registration Statement to a time and date not later than forty eight (48) hours after the submission of such request. The Company shall maintain the effectiveness of the Registration Statement until the earlier to occur of (i) the date on which all of the Registrable Securities have been sold pursuant to the Registration Statement and (ii) the date on which all of the remaining Registrable Securities (in the reasonable opinion of counsel to the Holders) may be immediately sold to the public without registration and without regard to the amount of Registrable Securities which may be sold by a Holder thereof at a given time (the period beginning on the Registration Deadline and ending on the earlier of such dates being referred to herein as the "Registration Period"). -------------------
(c) If (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (is not filed on or before the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be Filing Deadline or declared effective by the Commission as soon as practicableon or before the Registration Deadline (the "Registration Default Date"), and, with respect to (B) after the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have ------------------------- has been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does Commission, sales of Registrable Securities cannot become effective) be made by a Holder under the Registration Statement for any reason on or prior not within the exclusive control of such Holder (other than with respect to such Registrable Securities as are then freely saleable pursuant to Rule 144(k) under the Effectiveness DeadlineSecurities Act), or (iiiC) after its Effective Date, the Common Stock is not listed and freely tradeable on the Nasdaq National Market or the New York Stock Exchange (each of (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (vC) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to herein as an “a "Default Event,” and, for purposes of clauses (i"), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to ------------- each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% the lesser of (x) two percent (2%) per thirty calendar day period (prorated for any period of less than thirty calendar days) and (y) the highest rate permitted by applicable law, times the Stated Value of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities Preferred Stock then held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to accruing daily and compounded monthly, from the date on which a Holder Default Event occurs until the date on which such Default Event and any and all other Default Events have been cured and are no longer continuing. The amounts paid or payable by the Company hereunder shall be in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect addition to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior other remedies available to each Holder at law or in equity or pursuant to the expiration terms hereof or the Securities Purchase Agreement, or otherwise. Payments of the Effectiveness Period). If the Company fails to pay any Liquidated Damages such amounts pursuant to this Section hereto shall be made in immediately available funds within five (c) in full within ten (105) Business Days after the date payableend of each period that gives rise to such obligation, provided that, if any such period extends for more than thirty (30) days, payments shall be made at the end of each thirty-day period.
(d) If for any reason from time to time there are Registrable Securities which are not included or which are not allowed to be included by the SEC in a Registration Statement filed pursuant hereto, the Company will pay interest on the amount shall file additional Registration Statements as soon as practicable following a request by any Holder to effect a registration of Liquidated Damages then owing to the Holder at a rate all of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the HolderRegistrable Securities, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required which Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure subject to obtain all terms of this Agreement and shall use its best efforts to cause such Registration Statement to become effective as soon as practicable after such filing. The Company shall maintain the effectiveness of each Registration Statement until the earlier to occur of (i) the date on which all of the Registrable Securities have been sold pursuant to the Registration Statement and (ii) the date on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements which all of the remaining Registrable Securities Act (in which case the Effectiveness Deadline would reasonable opinion of counsel to the Holders) may be extended with respect immediately sold to the public without registration and without regard to the amount of Registrable Securities held which may be sold by such Registration Rights Purchaser)a Holder thereof at a given time.
Appears in 1 contract
Sources: Securities Purchase Agreement (Webb Interactive Services Inc)
Mandatory Registration. (a) On The Company shall prepare, and, on or prior to the Initial Registration Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and Deadline (as defined above) file with the Commission a Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 Form S-1 (or, if Rule 415 Form S-1 is not then available, on such form of Registration Statement as is then available for offers and sales to effect a registration of the Registrable Securities, by such other means subject to the consent of distribution of Registrable Securities as the Company may reasonably determine (the Buyer, which consent will not be unreasonably withheld)(the “Initial Registration Statement”). Notwithstanding ) covering the registration obligations set forth in this Section 2, in resale of the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial which Registration Statement, to the extent allowable under the 1933 Act and the rules and regulations promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon exercise of or otherwise pursuant to the Warrants to prevent dilution resulting from stock splits, stock dividends or similar transactions. The number of shares of Common Stock initially included in such Registration Statement shall be no less than the aggregate number of Warrant Shares that are then issuable upon exercise of or otherwise pursuant to the Warrants, without regard to any limitation on the Buyer's ability to exercise the Warrants (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statementcollectively, the Company agrees to promptly (A“Target Registration Amount”) inform each of Notwithstanding the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreementforegoing, if the opinion Company is advised by the staff of the Company’s counsel or any SEC Guidance sets forth Commission in a limitation written comment letter that it is not eligible to conduct the offering of the Debentures under Rule 415 promulgated under the 1933 Act because of the number of Registrable Securities permitted shares sought to be registered on a particular included in the Registration Statement as a secondary offeringStatement, then the Company may reduce (an “SEC Share Reduction”) the number of Registrable Securities to be registered on shares covered by such Registration Statement will be reduced pro rata on to the basis of the aggregate maximum number of Registrable Securities owned by each applicable Holder, and under such circumstances, which would enable the Company will not be subject to conduct such offering in accordance with the payment provisions of Liquidated Damages in Section Rule 415 (c“Rule 415 Eligible”). In the event of an SEC Share Reduction, the inclusion of the Warrant Shares in such initial Registration Statement shall take precedence over and shall not be cut back until the following securities of the Company amends the Initial are cut back and removed from such Registration Statement or files (in the following order): (i) Placement Agent Warrant Shares (to be cut back on a New Registration Statementpro-rata basis), as the case may be, under clauses (Aii) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants any securities of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New be included in such Registration Statement (the “Remainder Registration Statements”pursuant to Section 3(r). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased Warrant shares and the Additional Warrant Shares, on a prorata basis. Any cut back of Warrant Shares will be applied pro rata to be outstanding; each holder in proportion to the principal amount of Debentures held by each Holder. In the event that, due to an SEC Share Reduction or otherwise, any Registration Statement filed hereunder shall (ivwhen combined with any previous Registration Statements that are current and effective) register a number of shares of Common Stock which less than the date such Registrable Securities are sold in Target Registration Amount (a transaction in which “Target Registration Shortfall”), then the applicable rights under this Agreement are not assigned pursuant to Section 8(k) unregistered portion of the Target Registration Amount (such time period, the “Effectiveness PeriodTarget Registration Shortfall Amount”) shall be included in the next Additional Registration Statement (in accordance with Section 3(b) below). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m.shall, Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available by 9:30 a.m. New York City time on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall Trading Day after the effective date of such Registration Statement, file a final Prospectus for a Required Registration Statement with the Commission, Commission as required by Rule 424(b) as promptly as reasonably practicable following 424. The Company acknowledges that the Effective Date.
(c) If: (i) the Initial number of shares initially included in each Registration Statement is not filed with represents a good faith estimate of the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (maximum number of shares issuable upon exercise of or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement Warrants and shall be amended if not sufficient. Each Registration Statement (and each amendment or supplement thereto, and each request for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything acceleration of effectiveness thereof) shall be provided to (and subject to the contrary herein or in approval of) the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by Buyer and its counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (its filing or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)other submission.
Appears in 1 contract
Sources: Registration Rights Agreement (Universal Energy Corp.)
Mandatory Registration. (ai) On or prior to the Filing Deadline, the The Company shall, following the written request of the Registration Rights Purchasers, shall prepare and file with the Commission SEC, as soon as possible after the Closing Date but no later than sixty (60) days after the Closing Date (the "Required Filing Date"), either a Registration Statement covering on Form S-3 or SB-2 or an amendment to an existing Registration Statement, in either event registering for resale by the resale Investor a sufficient number of shares of Common Stock for the Initial Investors to sell the Registrable Securities (or such lesser number as may be required by the SEC, but in no event less than the number of shares (A) into which the Preferred Stock and all dividends thereon through the second anniversary of the Closing Date would be convertible at the time of filing of such Registration Statement (assuming for such purposes that the Conversion Rate were one dollar and that all shares of Preferred Stock had been eligible to be converted, and had been converted, into Conversion Shares in accordance with their terms, whether or not such issuance, accrual of dividends, eligibility or conversion had in fact occurred as of such date) and (B) which would be issued upon exercise of all of the Registrable Securities not already covered by an existing and effective Warrants at the time of filing of the Registration Statement (assuming for an offering such purposes that the Warrants had been eligible to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available exercised for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of shares contemplated thereby and had been exercised in accordance with their terms, whether or not such Registrable Securities permitted to be registered thereonissuance, on eligibility or exercise had in fact occurred as of such form available to the Company to register for resale date). The Registration Statement (W) shall include only the Registrable Securities; and (X) shall also state that, in accordance with Rule 416 and 457 under the Securities Act, it also covers such indeterminate number of additional shares of Common Stock as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion may become issuable upon conversion of the Company’s counsel or any SEC Guidance sets forth a limitation Preferred Stock and the exercise of the number of Registrable Securities permitted Warrants to be registered on a particular Registration Statement as a secondary offeringprevent dilution resulting from stock splits, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c)or stock dividends. In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the The Company will use its reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary best efforts to cause each Required such Registration Statement to be declared effective by on a date (the Commission as soon as practicable, and, with respect to the "Initial Registration Statement or the New Registration Statement, as applicable, Required Effective Date") which no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until is the earlier of (iY) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold five (5) days after notice by the Holders; (ii) the date SEC that all Registrable Securities covered by such Required Registration Statement it may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; declared effective or (ivZ) one hundred fifty (150) days after the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Closing Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission If at any time (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective an "Increased Registered Shares Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v"), the date on which such Event occursnumber of shares of Common Stock represented by the Registrable Shares, issued or for purposes to be issued as contemplated by the Transaction Agreements, exceeds the aggregate number of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), shares of Common Stock then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Dateregistered, the Company shall pay to each Holder an amount in cashshall, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days business days after receipt of a written notice from any Investor, either (X) amend the date payable, Registration Statement filed by the Company will pay interest on the amount of Liquidated Damages then owing pursuant to the Holder preceding provisions of this Section 2, if such Registration Statement has not been declared effective by the SEC at that time, to register such Registrable Shares, computed, (1)with respect to Shares previously issued, as the number of shares actually issued, and (2) with respect to Shares not yet issued, utilizing a rate Conversion Rate (as defined in the Certificate of 0.5% per month Designations) which is the lower of the Conversion Rate then applicable or the Conversion Rate contemplated by the immediately preceding subparagraph (i), or (Y) if such Registration Statement has been declared effective by the SEC at that time, file with the SEC an additional Registration Statement on Form S-3 or other appropriate registration statement form (an annualized basis "Additional Registration Statement") to register the shares of Common Stock represented by the Registrable Shares, computed as contemplated by the immediately preceding subparagraph (or i), that exceed the aggregate number of shares of Common Stock already registered. The Company will use its reasonable best efforts to cause such lesser maximum amount that is permitted Registration Statement to be paid by applicable lawdeclared effective on a date (each, an "Increased Required Effective Date") to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With which is no later than (Q) with respect to a HolderRegistration Statement under clause (X) of this subparagraph (ii), the Effectiveness Deadline for a Initial Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company Effective Date and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended R) with respect to Registrable Securities held an Additional Registration Statement, the earlier of (I) five (5) days after notice by such Registration Rights Purchaser)the SEC that it may be declared effective or (II) thirty (30) days after the Increased Registered Shares Date.
Appears in 1 contract
Sources: Registration Rights Agreement (Sac Technologies Inc)
Mandatory Registration. (a) On or prior to the Filing Deadline, the The Company shall, following the written request of the Registration Rights Purchasers, shall prepare and file with the Commission SEC, no later than thirty (30) days following the Closing Date under the Securities Purchase Agreement, either a Registration Statement covering on Form S-3 or an amendment to any pending Company Registration Statement on Form S-3 registering for resale by the resale of Investor all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to (or such lesser number as may be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”)SEC, but in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of no event less than the number of Registrable Securities permitted to shares into which the Preferred Shares would be registered on a particular Registration Statement as a secondary offeringconvertible and the Warrants exercisable at the time of filing of the Form S-3), the number of Registrable Securities to be registered on and such Registration Statement will be reduced pro rata on or amended Registration Statement shall state that, in accordance with Rule 416 and 457 under the basis Securities Act, it also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the aggregate number Preferred Shares and the exercise of Registrable Securities owned by each applicable Holderthe Warrants resulting from adjustment in the Conversion Price, and under such circumstancesor to prevent dilution resulting from stock splits, the Company will not be subject to the payment of Liquidated Damages in Section (cor stock dividends). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary its best efforts to cause each Required the Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than ninety (90) days after the Effectiveness Deadline, Closing Date. If at any time the number of shares of Common Stock into which the Preferred Shares may be converted and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all which would be issued upon exercise of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement Warrants exceeds the length aggregate number of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes shares of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), Common Stock then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Dateregistered, the Company shall pay to each Holder an amount in cashshall, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days business days after the date payablereceipt of a written notice from any Investor, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis either (or such lesser maximum amount that is permitted to be paid by applicable lawi) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of amend the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested filed by the Company and necessary pursuant to complete the preceding sentence, if such Registration Statement in accordance has not been declared effective by the SEC at that time, to register all shares of Common Stock into which the Preferred Stock may be converted, or (ii) if such Registration Statement has been declared effective by the SEC at that time, file with the requirements SEC an additional Registration Statement on Form S-3 to register the shares of Common Stock into which the Preferred Shares may be converted and which would be issued upon exercise of the Securities Act (in which case Warrants that exceed the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)aggregate number of shares of Common Stock already registered.
Appears in 1 contract
Sources: Registration Rights Agreement (Alcohol Sensors International LTD)
Mandatory Registration. (a) On or prior to the Filing Deadline, the The Company shall, following the written request of the Registration Rights Purchasers, prepare and shall file with the Commission SEC, on or before ninety (90) calendar days after the Demand has been made by the Board of Directors and approved by the Shareholders, as set forth in Section 5.14 or the Securities Purchase Agreement, or if no such Demand is made then 30 days after the expiration of the right to make the Demand (the "FILING DEADLINE") a Registration Statement on Form S-3 (or, if Form S-3 is not then available, on such form of Registration Statement as is then available to effect a registration of all of the Registrable Securities) covering the resale of all of the Registrable Securities not already covered by an existing and effective (the "INITIAL REGISTRATION STATEMENT"). The Registrable Securities included in the Initial Registration Statement shall be registered on behalf of the Investors as set forth in Section 10.11 hereof. The Initial Registration Statement (and each amendment or supplement thereto, and each request for an offering acceleration of effectiveness thereof) shall be provided to be made on the Investors and their counsel. If for any reason (including, but not limited to, a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales determination by the staff of the SEC that all or any portion of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, not be registered for resale as a secondary offering on a single registration statement prior to filing included in the Initial Registration Statement, or Statement (iian "SEC DETERMINATION")) the Commission informs Initial Registration Statement declared effective by the Company that SEC does not include all such of the Registrable Securities cannot, as a result of (any such shares that are not included being the application of Rule 415, be registered for resale as a secondary offering on a single registration statement"UNCOVERED SHARES"), the Company agrees shall prepare and file with the SEC, as soon as practicable, but in any event prior to promptly the tenth (A10th) inform each Business Day after becoming aware of the Holders thereof andexistence of any Uncovered Shares (such date referred to herein as the "UNCOVERED SHARE FILING DEADLINE"), as applicable, file either (a) an amendment (the Initial Registration Statement, or use reasonable and customary efforts to file amendments "UNCOVERED SHARES AMENDMENT") to the Initial Registration Statement as required by effecting a registration of the Commission and/or Uncovered Shares or (Bb) withdraw a registration statement which registers the Uncovered Shares (the "UNCOVERED SHARES REGISTRATION STATEMENT"). The Uncovered Shares Amendment or the Uncovered Shares Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to the Investors and their counsel. The Company shall use its commercially reasonable efforts to cause each of the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, Uncovered Shares Amendment or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Uncovered Shares Registration Statement to be declared become effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)filing thereof.
Appears in 1 contract
Sources: Common Stock Registration Rights Agreement (Mindarrow Systems Inc)
Mandatory Registration. (ai) On or prior The Company shall use its best efforts to the Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission not later than the Filing Date a Registration Statement or Registration Statements (as necessary) on Form S-3 covering the resale of all of the Registrable Securities not already covered by Securities, in an existing and effective Registration Statement for an offering amount sufficient to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales cover the resale of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result Shares issuable upon conversion of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result Notes and exercise of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, Warrants in either case where the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, conversion price and exercise price is $.724 or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c)$.57 per share. In the event that Form S-3 is unavailable and/or inappropriate for such a registration, the Company amends shall use such other form as is available and appropriate for such a registration. Any Registration Statement prepared pursuant hereto shall register for resale at least that number of shares of Common Stock equal to the Initial Shares. The Company shall use its best efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event prior to the Effectiveness Date; provided that, if (1) the Registration Statement is not declared effective by the Effectiveness Date, (2) prior to the one year anniversary of the Effectiveness date, the Registration Statement required to be filed by the Company pursuant to this Section shall cease to be available for use by any holder of the Note which is named therein as a selling stockholder for any reason (including, without limitation, by reason of a stop order, a material misstatement or omission in such Registration Statement or files a New the information contained in such Registration StatementStatement having become outdated), or (3) the Company fails, refuses or is otherwise unable timely to issue Shares upon conversion of the Notes or upon exercise of the Warrants in accordance with the terms of the Notes and the Warrants, or certificates therefor as required under the Transaction Documents, then the Company shall pay to each Purchaser an amount equal to one percent (1%) per month of the purchase price paid for the Notes purchased by the Purchaser. Thereafter, for every 30 days that pass during which any of the events described in clauses (1), (2), and (3) above occurs and is continuing (the “Blackout Period”), the Company shall pay to such Purchaser an additional amount equal to one percent (1%) of the purchase price paid for the Notes purchased by the Purchaser. Each such payment shall be due within five (5) days of 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 Purchaser, and shall not constitute the Purchaser’s exclusive remedy for such events. The Blackout Period shall terminate upon (x) the effectiveness of the Registration Statement in the case of clauses (l) and (2) above; (y) listing or inclusion and/or trading of the Common Stock on an Approved Market, as the case may be, under clauses in the case of clause (A) or (B3) above, ; and (z) delivery of such shares or certificates in the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants case of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement clause (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent4) above.
(bii) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary its best efforts to keep each Required Registration Statement continuously effective under the Securities Act pursuant to Rule 415 at all times until such date as is the earlier of (i) such time as the date on which all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; and (ii) the date that all on which the Registrable Securities covered (in the opinion of counsel to each Purchaser and acceptable to legal counsel for the Company) may be immediately sold without restriction (including without limitation as to volume restrictions by each holder thereof) without registration under the Securities Act (the “Registration Period”).
(iii) If any offering pursuant to a Registration Statement, pursuant to Section 2 hereof, involves an underwritten offering (which may only be with the consent of the Company), each Purchaser shall have the right to select legal counsel and an investment banker or bankers and manager or managers to administer to the offering, which investment banker or bankers or manager or managers shall be reasonably satisfactory to the Company.
(iv) If the Registrable Securities are registered for sale under the Securities Act, the Purchasers shall cease any distribution of such Required shares under the Registration Statement may not more than twice in any 12-month period, for up to 30 days each, upon the request of the Company if: (x) such distribution would require the public disclosure of material non-public information concerning any transaction or negotiations involving the Company or any of its affiliates that, in the good faith judgment of the Company’s Board of Directors, would materially interfere with such transaction or negotiations, (y) such distribution would otherwise require premature disclosure of information that, in the good faith judgment of the Company’s Board of Directors, would adversely affect or otherwise be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel detrimental to the Company pursuant or (z) the Company proposes to file a written registration statement under the Securities Act for the offering and sale of securities for its own account in an underwritten offering and the managing underwriter therefor shall advise the Company in writing that in its opinion letter the continued distribution of the Registrable Securities would adversely affect the success of the offering of the securities proposed to such effect, addressed and reasonably acceptable to be registered for the account of the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, each Purchaser at such time as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on such transactions or prior to the Filing Deadlinenegotiations have been otherwise publicly disclosed or terminated, or (ii) such non-public information has been publicly disclosed or counsel to the Initial Registration Statement or the New Registration Statement, as applicable, Company has determined that such disclosure is not declared effective by required due to subsequent events. If the Commission events described in either clauses (or otherwise does not become effectivex) for any reason on or prior to the Effectiveness Deadline, or (iiiy) after its Effective Dateof this section 2(iv) shall occur, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason then the Company shall provide each Purchaser with a copy of a stop order, or the Company’s failure to update Board of Directors minutes or resolutions evidencing such Board determination. Notwithstanding the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Dateforegoing, the Company shall pay may not require the Purchaser to each Holder an amount in cash, as liquidated damages and not as a penalty cease any distribution of such shares under the Registration Statement for the thirty (“Liquidated Damages”), equal to 3.0% 30) day period following the date of the aggregate purchase price paid by such Holder Company’s provision to the Purchaser of a Redemption Notice pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 1 contract
Sources: Registration Rights Agreement (Acclaim Entertainment Inc)
Mandatory Registration. (a) On or prior to The Company shall:
(i) include, at the Filing DeadlineCompany's sole cost and expense (other than the fees and disbursements of counsel for the Shareholder and the underwriting discounts, if any, payable in respect of the Registrable Securities sold by the Shareholder), the Registrable Securities in the first "shelf" registration statement filed by the Company shall, following with respect to its Common Stock with the written request Securities and Exchange Commission (the "COMMISSION") pursuant to Rule 415 of the Registration Rights PurchasersSecurities Act of 1933, as amended (the "SECURITIES ACT") after the date hereof;
(ii) in the event that no such "shelf" registration statement is filed within 90 days of the date hereof, then as promptly as practicable, but in any event within 90 days from the date hereof, prepare and file at the Company's sole cost and expense (other than the fees and disbursements of counsel for the Shareholder and the underwriting discounts, if any, payable in respect of the Registrable Securities sold by the Shareholder) one "shelf" registration statement with the Commission a Registration Statement on the appropriate form pursuant to Rule 415 of the Securities Act covering the resale of all the Registrable Securities. In no event shall the Company be required to file more than one registration statement. The Company will use commercially reasonable efforts through its officers, directors, auditors, and counsel to cause such registration statement to become effective as promptly as practicable following the filing thereof.
(b) In the event of a registration pursuant to Section 1(a), the Company shall use commercially reasonable efforts to cause the Registrable Securities so registered to be registered or qualified for sale under the securities or blue sky laws of such states as the Shareholder may reasonably request to permit the resale of the Registrable Securities in such states; and do such other reasonable acts and things as may be required of it to enable such holder to consummate the disposition in such states; provided, however, that the Company shall not already covered be required to qualify to do business in any state by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 reason of this Section 1(b) in which it is not available otherwise required to qualify to do business.
(c) The Company shall keep effective any registration or qualification contemplated by this Section 1 and shall from time to time amend or supplement each applicable registration statement, preliminary prospectus, final prospectus, application, document and communication for offers such period of time as shall be required to permit the Shareholder to complete the offer and sales sale of the Registrable Securities, subject to the following sentence. The Company shall keep such registration or qualification in effect until the earlier of: (i) the second anniversary of the date that the registration statement was declared effective, (ii) the first date upon which the Shareholder is free to sell all of such Registrable Securities under Rule 144 of the Securities Act or (iii) the date that the Shareholder has sold or otherwise transferred all the Registrable Securities under a registration statement, pursuant to Rule 144 under the Securities Act or otherwise.
(d) In the event of a registration pursuant to Section 1(a), the Company shall furnish to the Shareholder such reasonable number of copies of the registration statement and of each amendment and supplement thereto (in each case, including all exhibits), such reasonable number of copies of each prospectus contained in such registration statement and each supplement or amendment thereto (including each preliminary prospectus), all of which shall conform to the requirements of the Securities Act and the rules and regulations thereunder, and such other documents, as the Shareholder may reasonably request to facilitate the disposition of the Registrable Securities included in such registration.
(e) The Company agrees that until all the Registrable Securities have been sold under a registration statement or pursuant to Rule 144 under the Securities Act, it shall use commercially reasonable efforts to keep current in filing all reports, statements and other materials required to be filed with the Commission to permit holders of the Registrable Securities to sell such securities under Rule 144 of the Securities Act.
(f) The Company shall notify the Shareholder promptly when such registration statement and any amendments and supplements thereto have become effective or any supplements to any prospectus forming a part of such registration statement have been filed. The Company shall notify the Shareholder promptly of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and use commercially reasonable efforts to update and/or correct such prospectus as promptly as practicable by preparing a supplemental or post effective amendment to a registration statement or a supplement to the related prospectus or any document incorporated or deemed incorporated by reference and filing the same with the Commission. The Shareholder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in this Section 1(f) the Shareholder will forthwith discontinue disposition of such Registrable Securities covered by such registration statement or prospectus until the Shareholder (i) receives copies of the supplemented or amended prospectus and has been advised in writing by the Company that such supplemented or amended prospectus may be used, or (ii) is advised in writing by the Company that the use of the applicable prospectus may be resumed. If so directed by the Company, the Shareholder will deliver to the Company all copies, other means than permanent file copies, then in the Shareholder's possession, of distribution the prospectus covering such Registrable Securities current at the time of receipt of the notice referred to in the immediately preceding sentence.
(g) The Company shall notify the Shareholder promptly of the issuance by the Commission of any stop or other order suspending the effectiveness of the registration statement. If at any time the Company shall receive any such order, the Company shall use commercially reasonable efforts to obtain the withdrawal or lifting of such order at the earliest possible time. The Shareholder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in this Section 1(g), the Shareholder will forthwith discontinue disposition of such Registrable Securities covered by any registration statement or prospectus until such order has been withdrawn or lifted.
(h) The Company shall use commercially reasonable efforts to have the Registrable Securities included for quotation on the Nasdaq National Market.
(i) In connection with the registration of Registrable Securities pursuant to a registration statement, the Shareholder shall furnish to the Company such information regarding himself and the intended method of disposition of Registrable Securities as the Company may shall reasonably determine (the “Initial Registration Statement”). Notwithstanding request in order to effect the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 1 contract
Sources: Registration Rights Agreement (Metal Management Inc)
Mandatory Registration. The Company shall prepare, and, as soon as practicable, but in no event later than thirty (a30) On days after the Initial Closing Date or prior sixty (60) days after the Initial Closing Date in the event the Investors elect to sell their Registrable Securities in an underwritten offering (the Filing "FILING Deadline"), the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission SEC a Registration Statement or Registration Statements (as is necessary) (the "INITIAL REGISTRATION STATEMENT") on Form S-3 (or, if such form is unavailable for such a registration, on such other form as is available for such a registration, subject to the consent of each Buyer and the provisions of Section 2(c)) covering the resale of all of the Registrable Securities issuable upon conversion of the Preferred Stock and exercise of the Warrants issued (or to be issued) at the Initial Closing and all of the Additional Closings, in each case assuming that shares of Preferred Stock are not already covered by an existing and effective to be issued in excess of the "Initial Conversion Cap", as such term is defined in the Certificate of Designation (the "INITIAL REGISTRABLE SECURITIES"), which Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 orshall state that, if Rule 415 is not available for offers and sales in accordance with Rules 416 promulgated under the 1933 Act, such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the Registrable SecuritiesPreferred Stock to prevent dilution resulting from stock splits, by such other means stock dividends or similar transactions. Such Registration Statement shall initially register for resale at least 200% of distribution the number of Initial Registrable Securities issuable as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing date immediately preceding the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to date the Initial Registration Statement is initially filed with the SEC, subject to adjustment as required by provided in Section 3(c). Such registered shares of Common Stock shall be allocated among the Commission and/or (B) withdraw Investors pro rata based on the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum total number of such Initial Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities issued or issuable as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities date that were not registered for resale on the Initial Registration Statement, as amended, or relating to the New Registration Statement (resale of the “Remainder Registration Statements”)Initial Registrable Securities is declared effective by the SEC. No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary its best efforts to cause each Required have the Initial Registration Statement to be declared effective by the Commission SEC as soon as practicable, but in no event later than one hundred and twenty (120) days after the Initial Closing Date (or one hundred and eighty (180) days after the Initial Closing Date in the case of an underwritten offering) (the "EFFECTIVENESS DEADLINE"); provided, however, that if the SEC does not permit the Company to register all of the Initial Registrable Securities, including the Registrable Securities issuable upon conversion of the Additional Preferred Stock, by the Effectiveness Deadline (after the Company has used its best efforts to effect the registration of such securities), (i) the Company shall use its best efforts to register for resale 200% of the Registrable Securities issuable upon conversion of the Initial Preferred Stock as of the date immediately preceding the filing date or upon exercise of the initial outstanding Warrants by the Effectiveness Deadline and (ii) the Company shall prepare, and, as soon as practicable, but in no event later than thirty (30) days after the date that any Buyer delivers an Additional Preferred Stock Notice or sixty (60) days after the date that any Buyer delivers an Additional Preferred Stock Notice in the event that such Buyer elects to sell such Registrable Securities in an underwritten offering (the "ADDITIONAL FILING DEADLINE"), file with respect the SEC a Registration Statement (the "ADDITIONAL REGISTRATION STATEMENT") or an amendment to the Initial Registration Statement or covering the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier resale of (i) such time as all 200% of the Registrable Securities covered by issuable upon conversion of all of the Additional Preferred Stock issuable pursuant to the Securities Purchase Agreement and exercise of Warrants to be issued at the Additional Closing as of the date immediately preceding the filing date and the Company shall use its best efforts to have such Required Additional Registration Statement have been sold by the Holders; (iior amendment or supplement) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission SEC as soon as practicable, but in no event later than one hundred and twenty (120) days after the delivery of such Additional Preferred Stock Notice (or otherwise one hundred and eighty (180) days after the delivery of such Additional Preferred Stock Notice in the case of an underwritten offering) (the "ADDITIONAL EFFECTIVENESS DEADLINE"). In the event that, in respect of the Registrable Securities to be registered pursuant to clause (ii) above, the SEC does not become effective) for any reason on or prior to permit the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases registration of the Registrable Securities issuable upon conversion of Additional Preferred Stock and exercise of Warrants which preferred stock and warrants are to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure issued pursuant to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”)subsequent Additional Preferred Stock Notices, then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, (x) the Company shall pay use its best efforts to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0register for resale 200% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by issuable upon conversion of such Holder on Additional Preferred Stock and Warrants that are subject of the Event Date. The parties agree that notwithstanding anything Additional Preferred Stock Notice referred to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable clause (iii) if above as of the relevant Event Date, date immediately preceding the Registrable Securities may be sold filing date and the Company shall use its best efforts to have such registration declared effective by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to Additional Effectiveness Deadline and (y) the Company pursuant shall similarly prepare, file and use its best efforts to a written opinion letter have declared effective such number of additional Registration Statements (or amendments to such effectany Additional Registration Statements) as are necessary in connection with the delivery by any Buyer, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement subsequent Additional Preferred Stock Notices in accordance with the requirements of the Securities Act set forth in clause (in which case the ii) above (with each such additional Registration Statement deemed to be an "ADDITIONAL REGISTRATION STATEMENT" hereunder, each such Additional Filing Deadline deemed an "ADDITIONAL FILING DEADLINE" and each such Additional Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaserdeemed an "ADDITIONAL EFFECTIVENESS DEADLINE").
Appears in 1 contract
Sources: Registration Rights Agreement (Applied Digital Solutions Inc)
Mandatory Registration. (ai) On The Company shall use its best efforts to ---------------------- prepare, and, on or prior to before the Filing Deadline, date that is sixty (60) business days after the Company shall, following the written request date of the Registration Rights PurchasersFirst Closing, prepare and file with the Commission SEC a Registration Statement or Registration Statements (as necessary) on Form S-3 (or, if such form is unavailable for such a registration, on such other form as is available for such a registration of all of the Registrable Securities) (any of which may contain a combined prospectus with other registrations by the Company), covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial which Registration Statement”Statement(s). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective extent allowable under the Securities 1933 Act until and the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason rules promulgated thereunder (including without limitation by Rule 416), shall state that such Registration Statement(s) also covers such indeterminate number of additional shares (the "Indeterminate Shares") of Common Stock as may become issuable upon conversion of the Preferred Shares to prevent dilution resulting from stock splits, stock dividends or similar transactions.
(ii) To the extent the Indeterminate Shares for any reason of a stop order, or the Company’s failure to update can not be registered under the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is Statement(s) required to be effective, or (Bunder Section 2(a)(i) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”)above, then in addition with respect to any other rights the Holders may have hereunder or under applicable law, on the first such Event DateIndeterminate Shares, the Company shall pay use its best efforts to each Holder an amount in cashprepare, and, on or before the date that is fifteen (15) days after the Indeterminate Shares become issuable, file with the SEC a Registration Statement or Registration Statements (as liquidated damages and not necessary) on Form S-3 (or, if such form is unavailable for such a registration, on such other form as is available for such a penalty registration of all of the Indeterminate Shares) (“Liquidated Damages”any of which may contain a combined prospectus with other registrations by the Company), equal to 3.0% covering the resale of all of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event DateIndeterminate Shares. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness A copy of the Registration Statement on a timely basis results from Statement(s) (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to (and subject to the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements approval of the Securities Act (in Buyer, which case approval shall not be unreasonably withheld or denied) the Effectiveness Deadline would be extended with respect Buyer and its counsel prior to Registrable Securities held by such Registration Rights Purchaser)its filing or other submission.
Appears in 1 contract
Sources: Registration Rights Agreement (Nanopierce Technologies Inc)
Mandatory Registration. The Company shall prepare, on a one time basis, and, as soon as practicable, but not later than the sixtieth (a60th) On or prior to the Filing Deadline, the Company shall, day following the written request date of the Registration Rights PurchasersClosing under the Securities Purchase Agreement (the "FILING DATE"), prepare and file with the Commission SEC a Registration Statement covering the resale on Form S-3 (or, if Form S-3 is not then available, on such form of Registration Statement as is then available to effect a registration of all of the Registrable Securities not already covered by an existing and effective required to be included in such Registration Statement for an offering to be made on a continuous basis (as determined pursuant to Rule 415 or, if Rule 415 is not available for offers and sales Section 11(j) hereof) on or before the ninetieth (90th) day following the date of the Registrable Securities, by such other means Closing) covering the resale of distribution of at least 4,116,288 Registrable Securities as (200% of the Company may reasonably determine (maximum number of shares of Common Stock issuable upon the “Initial Registration Statement”full exercise of or otherwise with respect to the Prepaid Warrants issued at the Closing, plus 100% of the maximum number of shares of Common Stock issuable upon the full exercise of the Incentive Warrants and Placement Agent Warrants issued at the Closing). Notwithstanding The Registration Statement filed hereunder, to the registration obligations set forth in this Section 2extent allowable under the Securities Act and the Rules promulgated thereunder (including Rule 416), in 3 shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon exercise of the event that Warrants (i) the Company’s counsel determines that all such Registrable Securities cannotto prevent dilution resulting from stock splits, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, stock dividends or similar transactions or (ii) by reason of reductions in the Commission informs Exercise Price of the Company that all such Warrants in accordance with the terms thereof (including, but not limited to, in the case of the Prepaid Warrants, the terms which cause the Variable Exercise Price to decrease to the extent the Closing Bid Price of the Common Stock decreases). The Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” included in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(bfiled hereunder shall be allocated to the Investors as set forth in Section 11(k) hereof. The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement filed hereunder (and each amendment or the New Registration Statement, as applicable, no later than the Effectiveness Deadlinesupplement thereto, and each request for acceleration of effectiveness thereof) shall use reasonable be provided to (and customary efforts subject to keep each Required Registration Statement continuously effective under review by) the Securities Act until the earlier of (i) such time as all Placement Agent and its counsel acting on behalf of the Registrable Securities covered by Investors prior to its filing or other submission. The Investors understand that such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold include other shares of stock as registered by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 1 contract
Sources: Registration Rights Agreement (Fastcomm Communications Corp)
Mandatory Registration. The Company shall:
(a) On Use its commercially reasonable best efforts to have a Registration Statement on Form S-3, or, if Form S-3 is not available, Form S-1 or S-2 (the "REGISTRATION STATEMENT"), covering the resale by the Holders of Registrable Securities, declared effective by the SEC prior to February 1, 2001. The Company will use its commercially reasonable best efforts to keep the Filing DeadlineRegistration Statement effective at all times during the Registration Period; and the Company represents and warrants to, and covenants and agrees with, the Company shallHolders that the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein), following at the written request time it is first filed with the SEC, at the time it is ordered effective by the SEC and at all times during which it is required to be effective hereunder (and each such amendment and supplement at the time it is filed with the SEC and at all times during which it is available for use in connection with the offer and sale of the Registration Rights PurchasersRegistrable Securities) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(b) prepare and file with the Commission a SEC such amendments (including post-effective amendments) and supplements to the Registration Statement covering and the resale prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) furnish to the Holders and their legal counsel designated pursuant to Section 2(h), (1) promptly, one copy of the Registration Statement and any amendment thereto, each preliminary prospectus and prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC and each item of correspondence from the SEC or the staff of the SEC relating to such Registration Statement (other than any portion of any thereof which contains information for which the Company has sought confidential treatment) and (2) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto and such other documents, as the Holders may reasonably request in order to facilitate the disposition of the Registrable Securities not already owned by the Holders;
(d) use reasonable efforts to (i) register and qualify the Registrable Securities covered by an existing and effective the Registration Statement for an offering to be made on under such securities or blue sky laws of such jurisdictions as the Holders who hold a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales majority in interest of the Registrable SecuritiesSecurities being offered reasonably request, by (ii) prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times until the end of the Registration Period, (iii) take such other means of distribution of actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities as for sale in such jurisdictions; provided, however, that the Company may reasonably determine shall not be required in connection therewith or as a condition thereto (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth I) to qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 22(d), (II) to subject itself to general taxation in any such jurisdiction, (III) to file a general consent to service of process in any such jurisdiction, (IV) to provide any undertakings that cause more than nominal expense or burden to the Company or (V) to make any change in its Articles of Incorporation or by-laws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its shareholders;
(e) in the event that (i) the Company’s counsel determines that all such Registrable Securities cannotare being offered in an underwritten offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, including, without limitation, customary indemnification and contribution obligations, with the underwriters of such offering;
(f) as promptly as practicable after becoming aware of such event or circumstance, notify each Holder of any event or circumstance of which the Company has knowledge, as a result of which the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing prospectus included in the Initial Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement to correct such untrue statement or omission, file such supplement or amendment with the SEC at such time as shall permit the Holders to sell Registrable Securities pursuant to the Registration Statement as promptly as practical, and deliver a number of copies of such supplement or amendment to each Holder as the Holders may reasonably request;
(g) as promptly as practicable after becoming aware of such event, notify each Holder who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of any stop order or other suspension of effectiveness of the Registration Statement at the earliest possible time;
(h) permit a single firm of counsel designated by the Holders to review and comment on the Registration Statement and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC;
(i) make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the Securities Act) covering a twelve-month period beginning not later than the first day of the Company's fiscal quarter next following the effective date of the Registration Statement;
(j) at the request of the Holders who hold a majority in interest of the Registrable Securities being sold, furnish on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (i) a letter, dated such date, from the Company's independent certified public accountants in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the underwriters; and (ii) an opinion, dated such date, from counsel representing the Company for purposes of such Registration Statement, in form and substance as is customarily given in an underwritten public offering, addressed to the underwriters and the Holders;
(k) use its best efforts (i) to cause all the Registrable Securities covered by the Registration Statement to be listed on the Nasdaq or such other principal securities market on which securities of the same class or series issued by the Company are then listed or traded or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result if securities of the application of Rule 415, be registered for resale same class or series as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel are not then listed on Nasdaq or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offeringsuch other securities market, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required the Registration Statement have been sold by to be listed on the Holders; New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market;
(iil) provide a transfer agent and registrar, which may be a single entity, for the date that all Registrable Securities covered by such Required not later than the effective date of the Registration Statement may be sold Statement; and
(m) take all other reasonable actions necessary to expedite and facilitate disposition by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company Registrable Securities pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 1 contract
Sources: Registration Rights Agreement (Technology Crossover Management Ii LLC)
Mandatory Registration. The Company shall use its best efforts to prepare, as soon as practicable, but in no event later than 75 Business Days following January 31, 2006 (a) On or prior to the Filing Deadline"FILING DEADLINE"), the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission SEC a Registration Statement on Form SB-2 covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales together with other securities of the Registrable Securities, Company as may be determined by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c"ADDITIONAL SECURITIES"). In the event the Company amends the Initial Registration Statement or files that Form SB-2 is unavailable for such a New Registration Statement, as the case may be, under clauses (A) or (B) aboveregistration, the Company will shall use reasonable and customary efforts to file with the Commission, such other form as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on is available for such form available to the Company to a registration. The Registration Statement prepared pursuant hereto shall register for resale those Registrable 9,000,000 shares of Common Stock (subject to adjustment and assuming all of the Purchased Shares and Warrants under the Securities that were not registered for resale on Purchase Agreement have been subscribed for, and to the Initial Registration Statementextent a lesser amount of Purchased Shares and Warrants under the Securities Purchase Agreement have been subscribed for, as amended, or such lesser amount) and the New Additional Securities. The Registration Statement shall contain (except if otherwise directed by the “Remainder Registration Statements”). No Holder shall be named holders of at least a majority of the Registrable Securities) the "SELLING STOCKHOLDERS" section in substantially the form attached hereto as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) EXHIBIT B and the "PLAN OF DISTRIBUTION" attached hereto as EXHIBIT B. The Company shall use reasonable and customary its best efforts to cause each Required have the Registration Statement to be declared effective by the Commission SEC as soon as practicable. The Company shall use its best efforts to respond, file, amend the Registration Statement, and satisfy ("RESPONSE"), as soon as practicable, andany questions, with respect to comments, demands, or any other requests of the Initial Registration Statement or the New Registration StatementSEC, as applicable, but in no event later than 14 days after the Effectiveness Deadline, receipt of the same (or such other period agreed in writing by the Company and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until holders of the earlier of (i) such time as all majority of the Registrable Securities covered by such Required Registration Statement have been sold by (the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser"EFFORTS DEADLINE")."
Appears in 1 contract
Mandatory Registration. (a) On or prior to the Filing Deadline, the The Company shall, as promptly as reasonably practicable and in any event no later than one (1) calendar days following the written request filing of the Registration Rights PurchasersDefinitive Proxy Statement (the “Filing Deadline”), prepare and file with the Commission a SEC an initial Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”)) covering the resale of all Registrable Securities. Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to Before filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as shall furnish to the Investors a result copy of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable . The Investors and customary efforts to file amendments their counsel shall have at least three Business Days prior to the Initial anticipated filing date of a Registration Statement as required by the Commission and/or (B) withdraw the Initial to review and comment upon such Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted any amendment or supplement to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on and any related Prospectus, prior to its filing with the basis SEC. Subject to any SEC comments, such Registration Statement shall include the plan of distribution substantially in the aggregate form attached hereto as Exhibit A. Such Registration Statement also shall cover, to the extent allowable under the 1933 Act and the rules promulgated thereunder (including Rule 416), such indeterminate number of Registrable Securities owned by each applicable Holderadditional shares of Common Stock resulting from stock splits, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement stock dividends or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, similar transactions with respect to the Initial Registrable Securities. Such Registration Statement shall not include any shares of Common Stock or other securities for the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier account of (i) such time as all any other holder of securities of the Registrable Securities covered by such Company without the prior written consent of the Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”)Investors. The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1a) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not use commercially reasonable efforts to address in each such document prior to being so filed with the Commission on SEC such comments as the Investor or prior to its counsel reasonably proposed by the Filing DeadlineInvestor, and (iib) the Initial not file any Registration Statement or Prospectus or any amendment or supplement thereto containing information regarding the New Registration StatementInvestor to which Investor reasonably objects, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) unless such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it information is required to be effective, comply with any applicable law or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Dateregulation. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages Investors shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and furnish all information reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary as shall be reasonably required in connection with any registration referred to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)this Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (SAB Biotherapeutics, Inc.)
Mandatory Registration. The Company shall prepare, and, (ai) On on or prior to the date which is thirty (30) days after the date of the First Closing, (ii) during the ten-day period ending after each of the Second, Third and Fourth Closings, all as defined in the Securities Purchase Agreement (a "Closing Date"), and June 1, 1998, and (iii) upon the request of Investors owning more than 51% of the then outstanding shares of Preferred Stock, on or prior to up to the date that is ten days after the receipt by the Company of such a request ("Request Date") (any such filing deadline being hereinafter referred to as a "Filing Deadline"), the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission SEC a Registration Statement covering the resale Statement, on such form of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering as is then available to be made on effect a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales registration of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by underlying the Holders; (ii) securities issued at the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144Closing, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing DeadlineRequest Date, (ii) on June 1, 1998 or otherwise issued pursuant to the Initial Securities Purchase Agreement, in each case, to the extent not theretofore covered by a Registration Statement. Any Registration Statement or the New Registration Statementfiled pursuant hereto, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadlineextent allowable under the Securities Act and the Rules promulgated thereunder (including but not limited to Rule 416), or (iii) after its Effective Date, (A) shall state that such Registration Statement ceases to be effective for any reason (including without limitation by reason also covers such indeterminate number of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective additional shares of Common Stock as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% become issuable upon conversion of the aggregate purchase price paid by such Holder pursuant Preferred Stock or upon exercise of the Warrants to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Dateprevent dilution resulting from stock splits, stock dividends recapitalizations, reclassifications, distributions, consolidations, mergers or similar transactions. The parties agree that notwithstanding anything to the contrary herein or number of shares of Common Stock initially included in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required each Registration Statement shall be extended without default equal the maximum number of Conversion Shares and Warrant Shares issuable upon conversion of all shares of Preferred Stock and exercise of all Warrants issued or Liquidated Damages hereunder issuable in the event that the Company’s failure to obtain the effectiveness respect of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)Closing.
Appears in 1 contract
Mandatory Registration. (a) On The Company shall prepare, and on or prior to the date (the "Filing DeadlineDate") which is no later than ninety (90) days after the Closing Date (as defined in the Purchase Agreement), the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission SEC a Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial which Registration Statement”, to the extent allowable under the Securities Act and the rules and regulations promulgated thereunder (including Rule 416). Notwithstanding the registration obligations set forth in this Section 2, in the event shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable (i) with respect to the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or Draw Down Shares and Warrant Shares and (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result upon exercise of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments otherwise pursuant to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”)Warrants to prevent dilution resulting from stock splits, in each case covering the maximum stock dividends or similar transactions. The number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision shares of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on Common Stock initially included in such Registration Statement will shall be reduced pro rata on no less than the basis sum of (x) 50,000,000 Draw Down Shares issuable pursuant to the Purchase Agreement and (y) one hundred percent (100%) of the aggregate number of Registrable Securities owned by Warrant Shares that are issuable upon the exercise of or otherwise pursuant to the Warrants, without regard to any limitation on the Company's ability to effect Draw Downs under the Purchase Agreement or on IFG's ability to exercise the Warrants. The Company acknowledges that the number of shares initially included in the Registration Statement represents a good faith estimate of the maximum number of shares issuable under the Purchase Agreement and upon exercise of or otherwise pursuant to the Warrants. The Registration Statement (and each applicable Holderamendment or supplement thereto, and under such circumstances, the Company will not each request for acceleration of effectiveness thereof) shall be provided to and subject to the payment review of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement IFG and its counsel prior to its filing or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”)other submission. The Company shall request effectiveness of provide IFG and its counsel with a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness copy of the Registration Statement on a timely basis results from not less than five (5) days prior to the failure intended filing date and any pre- or post-effective amendment thereto not less than three (3) business days prior to the intended filing date and shall provide copies of such Holder any supplements not less than two (2) business days prior to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)intended filing date.
Appears in 1 contract
Mandatory Registration. (a) On or As promptly as possible after the date hereof, and in any event prior to the date that is seventy-five (75) days following the Closing Date (the “Mandatory Filing DeadlineDate”), the Company shall, following the written request of the Registration Rights Purchasers, shall prepare and file with the Commission SEC a Registration Statement covering on Form SB-2 (or on such other appropriate form for the resale required purpose) for the purpose of registering under the Securities Act all of the Registrable Securities not already covered by Shares for resale by, and for the account of, the Investor as an existing and effective initial selling stockholder thereunder (the “Mandatory Registration Statement”). The Mandatory Registration Statement for an offering shall permit the Investor to be made offer and sell, on a delayed or continuous basis pursuant to Rule 415 orunder the Securities Act, if Rule 415 is not available for offers and sales any or all of the Registrable Securities, by such other means Shares and shall contain (except if otherwise required pursuant to written comments received from the SEC upon a review of distribution of Registrable Securities as the Company may reasonably determine (Mandatory Registration Statement) the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, Plan of Distribution” attached hereto as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Annex A. The Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary its best efforts to cause each Required the Mandatory Registration Statement to be declared effective by the Commission as soon as practicablepossible but in no event later than the date that is 120 days following the Closing Date (or 150 days following the Closing Date in the event the Registration Statement is the subject of a review by the SEC) (the “Mandatory Effective Date”) (including filing with the SEC, andwithin five (5) Business Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the SEC that the Mandatory Registration Statement will not be “reviewed” or will not be subject to further review, a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities Act (an “Acceleration Request”), which request shall request an effective date that is within three (3) Business Days of the date of such request) and will otherwise effect all such registration, obtain all such qualifications and comply with all such laws, rules and regulations as may be necessary to permit the sale, transfer and other disposition of the Registrable Shares by the Investor pursuant to the Mandatory Registration Statement. The Company shall notify the Investor in writing promptly (and in any event within three (3) Business Days) after the Company’s submission of an Acceleration Request to the SEC. The Company shall be required to keep the Mandatory Registration Statement and any qualification, exemption or compliance under state securities laws which the Company determines to obtain or which the Company obtains at the request of the Investor continuously effective (including through the filing of any required post-effective amendments) with respect to the Initial Investor, and to keep such Registration Statement and related prospectus free of any material misstatements or the New Registration Statementomissions, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier to occur of (i) such time as the date after which all of the Registrable Securities covered by such Required Registration Statement Shares registered thereunder shall have been sold by the Holders; or (ii) the date that after which all of the Registrable Shares (excluding such Registrable Shares as are registered pursuant to any other effective Registration Statement) are freely tradable (without any volume limitations) by the Investor pursuant to Rule 144(k) promulgated under the Securities covered by such Required Act or any successor or substitute rule, law or provision. Thereafter, the Company shall be entitled to withdraw the Mandatory Registration Statement and, upon such withdrawal, the Investor shall have no further right to offer or sell any of the Registrable Shares pursuant to the Mandatory Registration Statement (or any prospectus relating thereto). Notwithstanding anything to the contrary contained herein, the Mandatory Registration Statement shall cover only the Registrable Shares, but the parties acknowledge that the Company may be sold choose to include, at its option and solely for its convenience, the Registrable Shares on a registration statement with other similar securities, but only if to do so would not adversely affect the Initial Investor.
(b) Notwithstanding anything in this Section 2 to the contrary, if the Company shall furnish to the Investor a certificate signed by the Holders without volume or manner Chief Executive Officer of sale restrictions under Rule 144, as determined by counsel to the Company stating that the Board has made the good faith determination (i) that the continued use by the Investor of the Mandatory Registration Statement for purposes of effecting offers or sales of Registrable Shares pursuant to a written opinion letter to hereto would require, under the Securities Act and the rules and regulations promulgated thereunder, premature disclosure in the Mandatory Registration Statement (or the Prospectus relating thereto) of material, nonpublic information concerning the Company, its business or prospects or any proposed material transaction involving the Company, (ii) that such effect, addressed and reasonably acceptable premature disclosure would be materially adverse to the Company’s transfer agent; , its business or prospects or any such proposed material transaction or would not be in the best interests of the Company and (iii) that it is therefore essential to suspend the date such use by the Investor, of the Mandatory Registration Statement (and the Prospectus relating thereto), then the right of the Investor to use the Mandatory Registration Statement (and the Prospectus relating thereto) for purposes of effecting offers or sales of Registrable Securities have ceased to Shares pursuant thereto shall be outstanding; suspended for a period (the “Suspension Period”) not greater than fifteen (15) consecutive Business Days during any consecutive twelve (12) month period. During the Suspension Period, the Investor shall not offer or (iv) the date such sell any Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned Shares pursuant to Section 8(k) or in reliance upon the Mandatory Registration Statement (such time period, or the “Effectiveness Period”Prospectus relating thereto). The Company shall request effectiveness of a Required Registration Statement agrees that, as of 4:00 p.m.promptly as possible, Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within but in no event later than one (1) Business Day Day, after the consummation, abandonment or public disclosure of the Effective Date, unless already available on event or transaction that caused the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required to suspend the use of the Mandatory Registration Statement with (and the CommissionProspectus relating thereto) pursuant to this Section 2(b), as required by Rule 424(b) the Company will as promptly as reasonably practicable following possible lift any suspension, provide the Effective DateInvestor with revised Prospectuses, if required, and will notify the Investor of its ability to effect offers or sales of Registrable Shares pursuant to or in reliance upon the Mandatory Registration Statement.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior It shall be a condition precedent to the Filing Deadlineobligations of the Company to register Registrable Shares for the account of the Investor pursuant to this Section 2 or Section 3 that the Investor furnish to the Company such information regarding itself, the Registrable Shares held by it, and the method of disposition of such securities as shall be required by the SEC to effect the registration of the Investor’s Registrable Shares.
(iid) In the Initial event that the Mandatory Registration Statement or the New Registration Statement, as applicable, other required registration statement is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to SEC by the Effectiveness Deadline, or (iii) after its Mandatory Effective Date, (A) or after its effective date, such Mandatory Registration Statement or such other required registration statement (as the case may be) ceases to be effective for any reason (including including, without limitation limitation, by reason of a stop order, or the Company’s failure to update such Mandatory Registration Statement or such other required registration statement (as the Registration Statementcase may be), ) to remain continuously be effective and available to all holders as to all Registrable Securities for Shares to which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (cover at any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing time prior to the expiration of the Effectiveness effectiveness period set forth in Section 2(a) above for greater than the Suspension Period as set forth above in Section 2(b), then the Company shall pay the Investor as partial damages for such failure and not as a penalty the following amounts: one percent (1%) of the purchase price (as set forth in the Securities Purchase Agreement) for the first month after the Mandatory Effective Date; one and one-half percent (1.5%) commencing on the first day of the second month through the last day of the third month after the Mandatory Effective Date; two percent (2%) commencing on the first day of the fourth month through the last day of the fifth month after the Mandatory Effective Date; and thereafter a one-half percent (0.5%) increase each quarter (the “Partial Damages Amount”), each month for such time period beyond the Mandatory Effective Date that such registration statement is not effective or beyond any applicable Suspension Period (a “Penalty Period”) (for purposes of clarity, it is hereby understood and agreed that, solely for the purpose of this Section 2(d), the deemed purchase price for each Share is $1.20 and the purchase price of each Warrant Share underlying each Unit shall be deemed to be equal to $0.30, provided that the dollar amounts set forth in this parenthetical clause shall be appropriately adjusted in the event of any adjustment, pursuant to the terms of the Warrants, in the exercise price of the Warrants or the number of shares issuable upon exercise of the Warrants); provided, however, that the amount payable to the Investor hereunder for any partial Penalty Period will not be pro-rated for the number of actual days during such Penalty Period during which a registration default remains uncured. Such payment of liquidated damages shall be made to the Investor within five (5) calendar days after the Penalty Period either, at the Investor’s option, (1) in cash or (2) in additional shares of Common Stock of the Company, such shares being valued at the average of the VWAPs of the Common Stock as reported by Bloomberg Financial L.P. (based on a trading day from 9:30 a.m. to 4:02 p.m. Eastern Time) using the VAP function over the 20 trading days immediately prior to the Mandatory Effective Date; provided, however, that the payment of such partial damages shall not relieve the Company from its obligations to register the Registrable Shares pursuant to this Agreement. If the Company fails to pay any Liquidated Damages pursuant said cash payment to this Section (c) the Investor by the applicable date specified in full within ten (10) Business Days after the date payableimmediately preceding sentence, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder thereon at a rate of 0.512% per month on an annualized basis annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the HolderInvestor, accruing daily from the date such Liquidated Damages partial damages are due until such amounts, plus all such interest thereon, are paid in full. With respect The total amount of partial damages payable to a Holderthe Investor pursuant to this Section 2(d), including any interest thereon, shall in no event exceed twenty five percent (25%) of the purchase price for the Units (as set forth in the Securities Purchase Agreement).
(e) During any Penalty Period, the Effectiveness Deadline for Company shall not (i) file any other registration statement, (ii) file any amendment to any other registration statement, or (iii) request acceleration of the effective date of any other registration statement registering with the SEC any securities of the Company until the Company has cured the condition leading to such Penalty Period, unless such filing or request has been approved by the holders of a Required Registration Statement majority of the Registrable Shares; provided, however, that the foregoing shall be extended without default or Liquidated Damages hereunder in the event that not limit the Company’s failure right to obtain the effectiveness file or request acceleration of the Registration Statement on a timely basis results from the failure effective date of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)any other registration statements using Forms S-4 or S-8 or other applicable successor forms.
Appears in 1 contract
Sources: Registration Rights Agreement (Gran Tierra Energy, Inc.)
Mandatory Registration. (ai) On The Company shall prepare, and, on or prior to the Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission SEC a Registration Statement (the “Mandatory Registration Statement”) on Form S-3 covering the resale of all of the Registrable Securities. If at the time of the Filing Deadline the Company is a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act), such Mandatory Registration Statement shall be an automatic shelf registration, and the Registration of Registrable Securities pursuant thereto may, in the sole discretion of the Company, be made by the filing of a new automatic shelf registration statement or by the post-effective amendment of, or filing of a prospectus supplement with respect to, an existing automatic shelf registration statement of the Company. Any such Mandatory Registration Statement, to the extent permitted under the Securities Act and the rules and regulations promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable in respect of the Shares to prevent dilution resulting from stock splits, stock dividends, stock issuances or similar transactions. In the event that, at the time of the Filing Deadline the Company is not eligible to use Form S-3, the Company shall prepare such Mandatory Registration Statement on such form as is then available to effect a registration of the Registrable Securities.
(ii) If for any reason, despite the Company’s use of its commercially reasonable efforts to include all of the Registrable Securities in the Registration Statement filed pursuant to Section 2(a)(i) above, the SEC does not permit all of the Registrable Securities to be included in, or for any other reason any Registrable Securities are not then included in, such Registration Statement, then the Company shall prepare, and, as soon as practicable but in no event later than the Additional Filing Deadline, file with the SEC an additional Registration Statement (each such Registration Statement, an “Additional Registration Statement”) covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 1 contract
Sources: Registration Rights Agreement (Aerie Pharmaceuticals Inc)
Mandatory Registration. (ai) On Following the date of this Agreement, the Company shall prepare, and, on or prior to the applicable Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission SEC a Registration Statement (the “Mandatory Registration Statement”) on Form S-3 (or, if Form S-3 is not then available, on such form of Registration Statement as is then available to effect a Registration of all of the Registrable Securities, (provided, that in the case of Additional Anti-dilution Shares that may become issuable in respect of the Series B Notes pursuant to Section 14.02(n) of the Indenture or Section 4(g) of the Warrants, the Mandatory Registration Statement shall include the Company’s good faith estimate of the number of such Additional Anti-dilution Shares that may become issuable pursuant to such provision), subject to the consent of the Investors, which consent shall not be unreasonably withheld), covering the resale of all of the Registrable Securities, which Registration Statement, to the extent allowable under the Securities Act and the rules and regulations promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion (as applicable) of or otherwise pursuant to or in respect of the Series B Notes or the Warrants to prevent dilution resulting from stock splits, stock dividends, stock issuances or similar transactions. The number of shares of Common Stock initially included in such Registration Statement shall be no less than 101,641,085, subject to adjustment for any Stock Event occurring prior to the effective date of such Registration Statement.
(ii) If for any reason, despite the Company’s use of its reasonable best efforts to include all of the Registrable Securities requested or required to be included in any Registration Statement filed pursuant to Section 2(a)(i) (and subject to Section 3(q) below), the SEC does not permit all such Registrable Securities to be included in such Registration Statement, or for any other reason any such Registrable Securities are not then included in a Registration Statement, then the Company shall prepare, and, as soon as practicable but in no event later than the Additional Filing Deadline, file with the SEC an additional Registration Statement on Form S-3 (or, if Form S-3 is not then available, on such form of Registration Statement as is then available to effect a Registration of the Registrable Securities, subject to the consent of the Investors, which consent shall not be unreasonably withheld) covering the resale of all Registrable Securities requested or required to be included in such Registration Statement filed pursuant to Section 2(a)(i) and not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or415.
(iii) Subject to any SEC comments, if Rule 415 is not available for offers and sales any Registration Statement pursuant to this Section 2(a) shall include a “plan of distribution” approved by the holders of a majority-in-interest of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on included in such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder Investor shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).an
Appears in 1 contract
Mandatory Registration. (ai) On or prior If, at any one time and only one time during the Mandatory Registration Rights Period, the Holder shall give notice to the Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and Purchaser requesting that Purchaser file with the Commission SEC under the 1933 Act a Registration Statement covering the resale of all registration statement relating to fifty percent (50%) or more of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering Registerable Shares issued to be made on a continuous basis Robmar pursuant to Rule 415 orthis Agreement, if Rule 415 is not available Purchaser shall as expeditiously as possible file (subject to Section 11(c)(iv)) and use its best efforts to cause to become effective under the 1933 Act a registration statement covering such number of Registerable Shares as the Purchaser has been requested to register for offers disposition by the Holder or to the extent required to permit the public sale or other public disposition thereof for a period of up to nine months by the Holder.
(ii) Purchaser shall pay all costs, expenses, disbursements and sales fees, including fees and expenses of Purchaser's counsel and of printing and furnishing copies of the Registrable Securitiesprospectuses, by in connection with the one registration statement initiated pursuant to the provisions of this Section 11(c), and also including all costs, expenses, disbursements and fees required to keep such other means registration statement current for a period of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”)up to nine months, but excluding those costs described in Section 11(b)(iii) above. Notwithstanding the registration obligations set forth in this Section 2foregoing, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will Purchaser shall not be subject required to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) pay for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company expenses of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages registration proceeding begun pursuant to this Section (c11(c) if the registration request is subsequently withdrawn by the Holder unless such withdrawal results from a material decline in full within ten (10) Business Days after the date payable, market price of the Company will pay interest on the amount of Liquidated Damages then owing Common Stock for reasons that were not foreseen by Purchaser and disclosed to the Holder within 10 days after the request for such registration is made to Purchaser. If the Holder's request under this Section 11(c) is made at a rate of 0.5% per time when the Purchaser's nine month on an annualized basis (or such lesser maximum amount that is permitted financial statements are no longer usable in a registration statement pursuant to applicable SEC regulations, but the Purchaser's year-end financial statements are not yet completed and are not required to be paid by completed pursuant to applicable law) SEC regulations, the Holder shall bear the additional costs and fees of the Purchaser's auditors which may result from the Purchaser's inability to use year-end financial statements in the registration statement initially filed pursuant to the Holder's request, accruing daily from unless the date Purchaser would ordinarily be required to incur such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect costs to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance comply with the reporting requirements of the Securities Exchange Act of 1934, as amended.
(in which case the Effectiveness Deadline would iii) It is understood that Purchaser shall not be extended with respect required to Registrable Securities held by such Registration Rights Purchaserfile more than one registration statement pursuant to this Section 11(c).
(iv) It is also understood that if the registration statement pertains to an underwritten offering, Purchaser shall have the right to postpone or withdraw any registration effected pursuant to this Section 11(c) without obligation to the Holder upon the advice of the managing underwriter that such postponement or withdrawal is in the best interests of Purchaser.
Appears in 1 contract
Mandatory Registration. (ai) On Following the Agreement Date, the Company shall prepare, and, on or prior to the applicable Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission SEC a Registration Statement (the “Mandatory Registration Statement”) on Form S-3 (or, if Form S-3 is not then available, on such form of Registration Statement as is then available to effect a registration of the Registrable Securities, subject to the consent of the Investors, which consent shall not be unreasonably withheld) covering the resale of the Registrable Securities, which Registration Statement, to the extent allowable under the Securities Act and the rules and regulations promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon exercise of or otherwise pursuant to the Warrants or the Warrant Shares to prevent dilution resulting from stock splits, stock dividends, stock issuances or similar transactions. The number of shares of Common Stock initially included in such Registration Statement shall be no less than 6,920,714, subject to adjustment for any stock split, share or stock dividend, recapitalization, combination of outstanding Common Shares (by consolidation, combination, reverse stock split or otherwise) or similar transactions occurring prior to the effective date of such Registration Statement. Each Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to (and shall be subject to the approval, which shall not be unreasonably withheld or delayed, of) the Investors and their counsel prior to its filing or other submission.
(ii) If for any reason, despite the Company’s use of its best efforts to include all of the Registrable Securities in the Registration Statement filed pursuant to Section 2(a)(i) above (and subject to Section 3(q) below), the SEC does not permit all of the Registrable Securities to be included in, or for any other reason any Registrable Securities are not then included in, such Registration Statement, then the Company shall prepare, and, as soon as practicable but in no event later than the Additional Filing Deadline, file with the SEC an additional Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 1 contract
Sources: Registration Rights Agreement (Melinta Therapeutics, Inc. /New/)
Mandatory Registration. (a) On or prior to No later than fourteen (14) business days after the Closing (the "Filing DeadlineDate"), the Company shall, following the written request of the Registration Rights Purchasers, will prepare and file with the Commission SEC a Registration Statement covering registration statement on Form S-3 (or, if Form S-3 is not then available to the resale Company, on such form of registration statement that is then available to effect a registration of all Registrable Shares) for the purpose of registering under the Securities Act all of the Registrable Securities not already covered by an existing Shares for resale by, and effective for the account of, the Investors as selling stockholders thereunder (the "Registration Statement"). The Registration Statement for an offering shall permit the Investors to be made offer and sell, on a delayed or continuous basis pursuant to Rule 415 orunder the Securities Act, if Rule 415 is not available for offers and sales any or all of the Registrable SecuritiesShares. The Registration Statement shall contain (except if otherwise directed by the Investors) the "Plan of Distribution" attached hereto as Exhibit A. The Company agrees to use commercially reasonable efforts to cause the Registration Statement to become effective as soon as practicable after filing, by such other means but in no event later than the earlier of distribution the sixtieth (60th ) day following the Filing Date or the date which is within ten (10) business days of Registrable Securities as the date on which the SEC informs the Company that the SEC (i) will not review the Registration Statement or (ii) that the Company may reasonably determine request acceleration of the effectiveness of the Registration Statement (the “Initial Registration Statement”"Effectiveness Date"). Notwithstanding The Company shall be required to keep the registration obligations set forth in this Section 2, in Registration Statement effective until such date that is the event that earliest of (i) the Company’s counsel determines that date when all such Registrable Securities cannot, as a result of the application of Rule 415Registrable Shares registered thereunder shall have been sold, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) such time as all the Commission informs Registrable Shares held by the Company that all such Registrable Securities cannot, as Investors can be sold pursuant to Rule 144 within a result given three-month period without volume limitation and without compliance with the registration requirements of the application of Rule 415, be registered for resale Securities Act or (iii) eighteen months from the Effectiveness Date (such date is referred to herein as a secondary offering on a single registration statementthe "Mandatory Registration Termination Date"). Thereafter, the Company agrees shall be entitled to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number Investors shall have no further right to offer or sell any of such the Registrable Securities permitted to be registered thereon, on such form available Shares pursuant to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”or any prospectus relating thereto). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable offer and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all sale of the Registrable Securities covered by such Required Shares pursuant to the Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may shall not be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Dateunderwritten.
(c) If: (i) The Company shall not permit any securities other than the Initial Registration Statement is not filed with Registrable Securities to be included in the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by unless otherwise agreed upon in writing between the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or Investors and the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 1 contract
Mandatory Registration. (ai) On Following the Issuance Date, the Company shall prepare, and, as soon as practicable and in any event on or prior to the applicable Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and file with the Commission SEC a Registration Statement (the “Mandatory Registration Statement”) on Form S-3 (or, if Form S-3 is not then available, on such form of Registration Statement as is then available to effect a Registration of the Registrable Securities, subject to the consent of the Investors, which consent shall not be unreasonably withheld) covering the resale of all of the Registrable Securities, which Registration Statement, to the extent allowable under the Securities Act and the rules and regulations promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable pursuant to the Convertible Notes, the Warrants, the Conversion Shares or the Warrant Shares to prevent dilution resulting from stock splits, stock dividends, stock issuances or similar transactions. The number of shares of Common Stock initially included in such Registration Statement shall be no less than 68,580,865 shares of Common Stock, subject to adjustment for any Stock Event. Each Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to (and shall be subject to the approval, which shall not be unreasonably withheld or delayed, of) the Investors and their counsel prior to its filing or other submission.
(ii) If for any reason, despite the Company’s use of its reasonable best efforts to include all of the Registrable Securities in the Registration Statement filed pursuant to Section 2 (a)(i) above (and subject to Section 3(q) below), the SEC does not permit all of the Registrable Securities to be included in, or for any other reason any Registrable Securities are not then included in, such Registration Statement, then the Company shall prepare, and, as soon as practicable but in no event later than the Additional Filing Deadline, file with the SEC an additional Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or415.
(iii) Subject to any SEC comments, if Rule 415 is not available for offers and sales any Registration Statement pursuant to this Section 2(a) shall include a “plan of distribution” approved by the holders of a majority-in-interest of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on included in such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder Investor shall be named as an “underwriter” in any the Registration Statement without such ▇▇▇▇▇▇the Investor’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by ; provided that, notwithstanding any other provision in this Agreement, if despite the Commission as soon as practicableCompany’s compliance with Section3(p), and, with respect to the Initial Registration Statement SEC or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until requires such Investor(s) to be named as an “underwriter” in the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (iiand such Investor(s) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a withhold written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased consent to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time periodso named, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective fulfill its obligations under this Section2(a) as to all Registrable Securities for which it is required to be effective, or (B) the Holders are a result thereof shall not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), constitute a violation of this Agreement.
(iv) a Grace Period applicable to a Required Unless the SEC does not so permit or otherwise directed by the Investors, each Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages filed pursuant to this Section (c2(a) in full within ten (10) Business Days after shall include a combined prospectus for the date payableresale of the Registrable Securities registered by such Registration Statement, the Company will pay interest on the amount of Liquidated Damages then owing Existing Registration Statement and any other Registration Statement previously filed hereunder, and shall be deemed a post-effective amendment to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Existing Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the or, other previously filed Registration Statement in accordance with Rule 429 under the requirements Securities Act.
(v) The Company hereby acknowledges and agrees that the shares of Common Stock covered by the Existing Registration Statement consist of Conversion Shares that continue to be issuable upon conversion of the Securities Act Original Loan Convertible Notes, as amended as of the date hereof, that remain outstanding after the date hereof (in which case such shares, collectively, the Effectiveness Deadline would be extended with respect to Registrable Securities held by such “Previously Registered Shares”). Without limiting any of the Company’s obligations hereunder or under the Existing Registration Rights Purchaser)Agreement, the Company hereby agrees to take such actions as shall be necessary (including filing a supplement to the prospectus included in the Existing Registration Statement within two Business days after the date hereof to reflect the amendments to the Notes upon conversion which the Previously Registered Shares are issuable) to keep the Existing Registration Statement continuously effective and available for the resale of all of the Previously Registered Shares in accordance with the plan of distribution set forth therein.
Appears in 1 contract
Mandatory Registration. (ai) On or prior As soon as reasonably practicable following the date the Buyer first delivers an Exchange Notice (as defined in the Note) to the Issuer to exchange any Exchange Amount (as defined in the Note) into Common Stock (the “Initial Exchange Date”), but, in any event, no later than forty-five (45) days after the Initial Exchange Date (the “Filing Deadline”), the Company shall, following the written request of the Registration Rights Purchasers, shall prepare and file with the Commission SEC a Registration Statement on Form S-3 or, in the event the Company is not eligible to use Form S-3, on Form S-1, covering the resale of all of the Registrable Securities not already covered by an existing and effective Shares. Such Registration Statement also shall cover, to the extent permitted by Rule 416 under the Securities Act such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Shares. Such Registration Statement (and each amendment or supplement thereto, and each request for an offering acceleration of effectiveness thereof) shall be provided in accordance with Section 4(c) to be made on a continuous basis pursuant the Buyers and their counsel prior to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such its filing or other means of distribution of Registrable Securities as the Company may reasonably determine submission.
(the “Initial Registration Statement”). ii) Notwithstanding the registration obligations set forth in this Section 22(a)(i) above, in the event that (i) the Company’s counsel determines SEC informs the Company that all such of the Registrable Securities cannot, as a result of the application of Rule 415415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement prior initially filed by the Company pursuant to filing Section 2(a)(i) above (the “Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement”), the Company agrees to shall promptly (A) inform each of the Holders Buyers thereof and, as applicable, file the Initial Registration Statement, or and use its commercially reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission SEC and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case either case, covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to by the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement Form S-3 or Form S-1, as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c)applicable. In the event that the Company amends the Initial Registration Statement or files a New Registration Statement, as Statement in accordance with the case may be, under clauses (A) or (B) aboveforegoing, the Company will shall use its commercially reasonable and customary efforts to file with the CommissionSEC, as promptly as allowed by Commission the SEC or SEC Guidance staff guidance provided from time to time to the Company or to registrants of securities in general, one or more registration statements on Form S-3 or Form S-1, as applicable, or such other form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder ; provided, however, that the Company shall not, without the Buyers’ prior written consent (which consent may be named as an “underwriter” in withheld, delayed or conditioned at the discretion of the Buyers) file or request acceleration of the effectiveness of any Registration Statement without such ▇▇▇▇▇▇’s prior written consentunder this Section 2(a) if the SEC has informed the Company in the SEC review process that any Buyer would be deemed an underwriter under the Securities Act in connection therewith, and the Company in so refraining from filing or requesting acceleration, shall not be in violation or breach of this Agreement.
(biii) The Subject to the forgoing, the Company shall use commercially reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to have the Initial Registration Statement or the Statement, any New Registration Statement, and any Remainder Registration Statements declared effective as applicable, no later than soon as practicable after the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”)initial filing thereof. The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via Buyers by facsimile or electronic e-mail of a “.pdf” format data file of the effectiveness of a Registration Statement as promptly as practicable, and in any event, within one (1) Business Day Day, after any such Registration Statement is declared effective and shall provide the Buyers with copies of any related Prospectus to be used in connection with the sale or other disposition of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Datesecurities covered thereby.
(civ) If: (i) Except as contemplated by the ABN Registration Rights Agreement and the 2007 Registration Rights Agreement, during the period beginning on the Initial Registration Statement is not filed with the Commission Exchange Date and ending on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay refrain from filing, any registration statement other than (A) a Registration Statement filed hereunder or (B) a registration statement on Form S-8 with respect to each Holder an amount stock option plans and agreements and stock plans currently in casheffect and disclosed in the Purchase Agreement or the schedules thereto. In addition, except as liquidated damages contemplated by the ABN Registration Rights Agreement and not as a penalty (“Liquidated Damages”)the 2007 Registration Rights Agreement, equal to 3.0% during the term of this Agreement, in no event shall the Company include any securities other than the Registrable Securities in any Registration Statement filed by the Company on behalf of the aggregate purchase price paid by such Holder Buyers pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as terms of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser2(a).
Appears in 1 contract
Sources: Registration Rights Agreement (Synutra International, Inc.)
Mandatory Registration. Within 90 days of receipt of payment for the Registrable Securities by the Company, if (ai) On the Common Stock of the Company shall then be registered pursuant to Section 12(g) under the Securities Exchange Act of 1934 (the "1934 Act"); (ii) the Company is then current with all filing requirements under the 1934 Act; and (iii) if the Company shall then qualify for use of a registration statement on Form S-3 covering all such Registrable Securities; then the Company except as otherwise provided below, shall use its best efforts to cause the registration under the Act of fifty percent (50%) of the Registrable Securities. Within one year of receipt of payment for the Registrable Securities by the Company, if (i) the Common Stock of the Company shall then be registered pursuant to Section 12(g) under the 1934 Act; (ii) the Company is then current with all filing requirements under the 1934 Act; and (iii) if the Company shall then qualify for use of a registration statement on Form S-3 covering all such Registrable Securities; then the Company except as otherwise provided below, shall use its best efforts to cause the registration under the Act of the remaining fifty percent (50%) of the Registrable Securities. If the Company so elects, any registration under this paragraph may be for an underwritten public offering to be managed by an underwriter or prior underwriters of recognized standing reasonably acceptable to the Filing DeadlineCompany. Whenever required to use its best efforts to effect the registration of any Registrable Securities, the Company shall, following the written request of the Registration Rights Purchasers, prepare as expeditiously as reasonably possible:
(a) Prepare and file with the Securities and Exchange Commission a Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering registration statement on Form S-3 with respect to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannotand use its best efforts to cause such registration statement to become and remain effective; provided, however, that the Company shall in no event be obligated to cause any such registration to remain effective for more than the earlier of sale of all Registrable Securities covered thereby or two years after the date on which the registration statement was declared or ordered effective.
(b) Prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as a result may be necessary to comply with the provisions of the application Act with respect to the disposition of Rule 415all securities covered by such registration statement.
(c) Furnish to the Holder such numbers of copies of a prospectus, be registered for resale as including a secondary offering on a single registration statement prior to filing preliminary prospectus, in conformity with the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result requirements of the application of Rule 415Act, be registered for resale and such other documents as a secondary offering on a single registration statement, they may reasonably request in order to facilitate the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number disposition of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consentthem.
(bd) The Use its best efforts to register and qualify the securities covered by such registration statement under the securities or blue sky laws of such other jurisdictions as shall be reasonably appropriate for the distribution of the securities covered by the registration statement, provided that the Company shall use reasonable not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions, and customary efforts further provided that (anything in this Agreement to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, contrary notwithstanding with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier bearing of (iexpenses) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction if any jurisdiction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time periodsecurities shall be qualified shall require that expenses incurred in connection with the qualification of the securities in that jurisdiction be borne by selling shareholders pro rata, the “Effectiveness Period”). The Company Holder shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify pay such costs to the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as extent required by Rule 424(b) as promptly as reasonably practicable following the Effective Datesuch jurisdiction.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 1 contract
Mandatory Registration. (ai) On or prior to the Filing Deadline, the The Company shall, following the written request of the Registration Rights Purchasers, shall prepare and file with the Commission SEC, as soon as practicable after the Closing Date but no later than the Initial Required Filing Date, a Registration Statement covering registering for resale by the resale Investor a sufficient number of shares of Common Stock for the Initial Investors to sell the Registrable Securities. Notwithstanding the requirement to register all of Registrable Securities, the Company’s obligation to register the Registrable Securities not already covered shall initially be satisfied by an existing the registration of the Initial Number of Shares to Be Registered (as defined below). The “Initial Number of Shares to Be Registered” is a number of shares of Common Stock which is at least equal to the sum of (x) the number of shares into which the Debentures and effective all interest thereon through their respective Maturity Dates would be convertible at the time of filing of such Registration Statement (assuming for an offering such purposes that all Debentures had been eligible to be made converted, and had been converted, into Conversion Shares in accordance with their terms, and that all interest was paid in shares, whether or not such eligibility, accrual of interest or conversion had in fact occurred as of such date) based on the Applicable Conversion Price in effect on, or within three (3) Trading Days prior to, the date the Registration Statement is filed (or subsequently amended), and (y) the number of Other Issuable Shares as of the date of the filing of the Registration Statement or any amendment thereto; provided, however, that for purposes of this provision, the Initial Number of Shares to Be Registered in the initial Registration Statement shall not be greater than the number of such shares which the SEC permits to be included in such Registration Statement. Unless otherwise specifically agreed to in writing in advance by a continuous basis pursuant to Rule 415 orMajority in Interest of the Holders, if Rule 415 is not available for offers and sales of the Registration Statement (X) shall include only the Registrable Securities, (Y) shall not restrict or limit the prices at which the shares sold by the selling stockholders thereunder may be sold, and (Z) shall also state that, in accordance with Rule 416 and 457 under the Securities Act, it also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the Debentures, or issuances of Other Issuable Securities covered by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2Statement to prevent dilution resulting from stock splits, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, stock dividends or similar transactions.
(ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the The Company will use its reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary best efforts to cause each Required such Registration Statement to be declared effective by on a date (the Commission as soon as practicable, and, with respect to the “Initial Registration Statement or the New Registration Statement, as applicable, Required Effective Date”) which is no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (iX) such time as all five (5) days after oral or written notice by the SEC that it may be declared effective or (Y) ninety (90) days after the Closing Date (unless the SEC provides a full review of the Registrable Securities covered by such Required Registration Statement, in which event it will be one hundred twenty (120) days after the Closing Date). Notwithstanding the foregoing, failure to cause the Registration Statement have been sold to become effective will be construed as an Event of Default under Section 14(i)(e) of the Debenture held by the HoldersInvestor; but the foregoing proviso shall not limit or restrict the right of a Holder to declare an Event of Default under the Note if there is a Special Registration Default (ii) as defined in the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; Debenture.
(iii) the date such Registrable Securities have ceased to be outstanding; or If at any time (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Increased Registered Shares Date”), the number of shares of Common Stock represented by the Registrable Securities, issued or to be issued as contemplated by the Transaction Agreements, exceeds the aggregate number of shares of Common Stock then registered or sought to be registered in addition a Registration Statement which has not yet been declared effective (it being acknowledged that the date of an adjustment in the Conversion Price pursuant to any other rights Section 4(g) of the Holders may have hereunder or under applicable law, on the first such Event Securities Purchase Agreement is an Increased Registered Shares Date), the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).either
Appears in 1 contract
Sources: Registration Rights Agreement (Skystar Bio-Pharmaceutical Co)
Mandatory Registration. (a) On The Company shall prepare, and, on or prior to February 13, 2000 file (the Filing Deadline, the Company shall, following the written request of the Registration Rights Purchasers, prepare and file "FILING DEADLINE") with the Commission SEC a Registration Statement or Registration Statements (as is necessary) on Form S-3 or SB-2 (or, if such form is unavailable for such a registration, on such other form as is available for such a registration, subject to the consent of each Buyer and the provisions of Section 2(e), which consent will not be unreasonably withheld), covering the resale of all of the Registrable Securities not already covered by an existing and effective Securities, which Registration Statement(s) shall state that, in accordance with Rule 416 promulgated under the 1933 Act, such Registration Statement(s) also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the Preferred Stock to prevent dilution resulting from stock splits, stock dividends or similar transactions. Such Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Company may reasonably determine (the “Initial Registration Statement”). Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to shall initially register for resale at least 1,000,000 shares of Common Stock, subject to adjustment as provided in Section 3(b), and such registered shares of Common Stock shall be allocated among the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if Investors pro rata based on the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the total number of Registrable Securities permitted to be registered on issued or issuable as of each date that a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or relating to the New Registration Statement (resale of the “Remainder Registration Statements”)Registrable Securities is declared effective by the SEC. No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary its best efforts to cause each Required have the Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to SEC within one hundred (100) days after the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all issuance of the Registrable Securities covered by such Required Registration Statement have been sold by Preferred Stock (the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”"REGISTRATION DEADLINE"). The Company shall request effectiveness permit the registration statement to become effective within five (5) business days after receipt of a Required "no review" notice from the SEC. If the Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is has not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not been declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Registration Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or under the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Pledge Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if dated as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner even date herewith between certain shareholders of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary the Buyer, the Buyer has certain rights to complete the Registration Statement in accordance with the requirements convert some or all of the Securities Act (in which case Preferred Stock and foreclose upon shares of Common Stock of the Effectiveness Deadline would be extended with respect Company pledged pursuant to Registrable Securities held by such Registration Rights Purchaser)that Pledge Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Bioshield Technologies Inc)
Mandatory Registration. (a) On or prior to the Filing Deadline, the The Company shall, as soon as practicable after each Closing Date but in no event more than 45 days following the written request of the Registration Rights Purchaserssuch Closing Date, prepare and file with the Commission SEC a Registration Statement covering the resale of all of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 Form S-3 (or, if Rule 415 Form S-3 is not then available, on such form of Registration Statement as is then available for offers and sales to effect a registration of the Registrable Securities, by such other means subject to the consent of distribution the Investors (as determined pursuant to Section 10(a) hereof), which consent will not be unreasonably withheld conditioned or delayed) covering the resale of the Registrable Securities as issued or issuable to such Investors pursuant to securities of the Company may reasonably determine (the “Initial Registration Statement”)issued on each such Closing Date. Notwithstanding the registration obligations set forth in this Section 2, in the event that (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing the Initial The Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by extent allowable under the Commission and/or 1933 Act and the Rules promulgated thereunder (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”including Rule 416), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on shall state that such Registration Statement will be reduced pro rata on the basis also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the aggregate number Preferred Shares and/or exercise of Registrable Securities owned by each applicable Holderthe Warrants to prevent dilution resulting from stock splits, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c)stock dividends or similar transactions. In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary its best efforts to cause each Required such registration to become and remain effective (including the taking of such steps as are necessary to obtain the removal of any stop orders); provided, that the Investors shall furnish the Company, within five (5) business days of the Company's written request, with such appropriate information in connection therewith (whether requested prior to or after the filing of the Registration Statement with the SEC) as the Company shall reasonably request in writing. The Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to be declared effective by the Commission as soon as practicable, and, with respect (and subject to the Initial approval of) the Investors and their counsel prior to its filing or other submission. The number of shares of Common Stock initially included in such Registration Statement or the New Registration Statement, as applicable, shall be no later less than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of one hundred fifty percent (i150%) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner shares of sale restrictions under Rule 144, as determined by counsel Common Stock issued to the Company Investors on such Closing Date or issuable pursuant to a written opinion letter to such effect, addressed and reasonably acceptable the securities of the Company issued to the Company’s transfer agent; Investors on such Closing Date (iiiassuming the Conversion Price set forth in Section 5(b)(ii)(A) of the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”Certificate of Designation). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of further undertakes to take all steps necessary to ensure that a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadlineis, or (iii) after its Effective DateRegistration Statements are, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update at all times during the Registration Statement), to remain continuously effective Period (as defined below) with respect to all Registrable Securities for which it is required to be effective, or (B) and the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)resale thereof.
Appears in 1 contract
Mandatory Registration. (a1) On or prior (i) The Company shall prepare and, in no event later than the date which is 45 days after the Closing Date, file with the SEC a Registration Statement which covers the resale by the Investor of a number of shares of Common Stock equal to the Filing Deadlinenumber of Conversion Shares issuable upon conversion of the Note based on the initial Conversion Price as set forth in the Note, as Registrable Securities, and which Registration Statement shall state that, in accordance with Rule 416 under the 1933 Act, such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the Note to prevent dilution resulting from stock splits, stock dividends or similar transactions; (ii) Notwithstanding anything to the contrary contained in this Section 5, if the Company receives SEC Comments, and following discussions with and responses to the SEC in which the Company uses its reasonable best efforts and time to cause as many Registrable Securities for as many Investors as possible to be included in the Registration Statement filed pursuant to Section 5(a) without characterizing any Investor as an underwriter (and in such regard uses its reasonable best efforts to cause the SEC to permit the affected Investors or their respective counsel to participate in SEC conversations on such issue together with counsel of the Company, and timely conveys relevant information concerning such issue with the affected Investors or their respective counsel), the Company shallis unable to cause the inclusion of all Registrable Securities in such Registration Statement, then the Company may, following not less than three (3) Trading Days prior written notice to the written request of Investors, (x) remove from the Registration Rights Purchasers, prepare and file with the Commission a Registration Statement covering the resale of all of the such Registrable Securities not already covered by an existing (the “Cut Back Shares”) and/or (y) agree to such restrictions and effective Registration Statement for an offering to be made limitations on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers the registration and sales resale of the Registrable Securities, by such other means of distribution of Registrable Securities in each case as the SEC may require in order for the SEC to allow such Registration Statement to become effective; provided, that in no event may the Company may reasonably determine name any Investor as an underwriter without such Investor’s prior written consent (collectively, the “Initial Registration StatementSEC Restrictions”). Notwithstanding Unless the registration obligations set forth in SEC Restrictions otherwise require, any cut-back imposed pursuant to this Section 2, in the event that (i5(a)(1)(ii) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application of Rule 415, shall be registered for resale as a secondary offering on a single registration statement prior to filing the Initial Registration Statement, or (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale allocated among the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered Investors on a particular Registration Statement pro rata basis. No liquidated damages under Section 5(a)(2) shall accrue on or as a secondary offeringto any Cut Back Shares, and the number of Registrable Securities to be registered on required SEC Effectiveness Date for such Registration Statement will be reduced pro rata on tolled, until such time as the basis Company is able to effect the registration of the aggregate number Cut Back Shares in accordance with any SEC Restrictions (such date, the “Restriction Termination Date”). From and after the Restriction Termination Date, all provisions of this Section 5 (including, without limitation, the liquidated damages provisions, subject to tolling as provided above) shall again be applicable to the Cut Back Shares (which, for avoidance of doubt, retain their character as “Registrable Securities owned by each applicable Holder, and under such circumstances, Securities”) so that the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts required to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission such additional Registration Statements in the time frames set forth herein as soon as practicable, and, with respect necessary to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts ultimately cause to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities be covered by such Required effective Registration Statement have been sold by the Holders; (ii) the date that Statements all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date if such Registrable Securities have ceased to cannot at such time be outstanding; or (iv) resold by the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned Investors thereof pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes of clause (iv) the date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on the first such Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable (i) if as of the relevant Event Date, the Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser).
Appears in 1 contract
Mandatory Registration. (a1) On or prior The Company shall prepare and, as expeditiously as possible, but in no event later than December 29, 2004, file with the SEC a Registration Statement which covers the resale by the Buyer of (A) a number of shares of Common Stock equal to at least the number of Conversion Shares issuable to the Filing DeadlineBuyer upon conversion of the Preferred Shares, and one quarter-year of accrued and unpaid dividends on the Preferred Shares at the rate specified in the Certificate of Designations, determined at the Conversion Price which is applicable on the day the Registration Statement is filed with the SEC and (B) the number of Warrant Shares issuable upon exercise of the Warrant, and which Registration Statement shall state that, in accordance with Rule 416 under the 1933 Act, such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of the Preferred Shares and exercise of the Warrant to prevent dilution resulting from stock splits, stock dividends or similar transactions. Notwithstanding the foregoing, if for any reason the SEC does not permit all of the Registrable Securities to be included in such Registration Statement to be sold by selling stockholders at prices that are “at the market”, then the Company shall, following the written request of the Registration Rights Purchasers, shall prepare and file with the Commission SEC a separate Registration Statement covering the resale of all of the with respect to any such Registrable Securities not already covered by an existing included with the initial Registration Statement, as expeditiously as possible, but in no event later than the date which is 45 days after the date on which the SEC shall indicate as being the first date such filing may be made.
(2) Prior to the SEC Effective Date, and effective during any time subsequent to the SEC Effective Date when the Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 any reason is not available for offers and sales use by any Investor for the resale of the any Registrable Securities, by such other means of distribution of Registrable Securities as the Company shall not file any other registration statement or any amendment thereto with the SEC under the 1933 Act or request the acceleration of the effectiveness of any other registration statement previously filed with the SEC, other than (A) any registration statement on Form S-8 and (B) any registration statement or amendment, inclusive of the Registration Statement on Form SB-2 of the Company currently on file, which the Company is required to file, or as to which the Company is required to request acceleration, pursuant to any obligation in effect on the date of execution and delivery of this Agreement or a transaction permitted under Section 5(i)(c).
(3) If a Registration Event occurs, then the Company will make payments to the Buyer as partial liquidated damages for the minimum amount of damages to the Buyer by reason thereof, and not as a penalty, at the rate of 2% per month of the Purchase Price paid by the Buyer pursuant to this Agreement (excluding the Purchase Price with respect to Shares already sold or which may reasonably determine be sold pursuant to Rule 144(k), for each calendar month of the Registration Default Period (the “Initial Registration Statement”pro rated for any period less than 30 days). Notwithstanding Each such payment shall be due and payable within five (5) days after the registration obligations set forth end of each calendar month of the Registration Default Period until the termination of the Registration Default Period and within five (5) days after such termination. Such payments shall be in this Section 2partial compensation to the Buyer, and shall not constitute the Buyer’s exclusive remedy for such events. The Registration Default Period shall terminate upon (u) the filing of the Registration Statement in the event that case of clause (i) the Company’s counsel determines that all such Registrable Securities cannot, as a result of the application definition of Rule 415, be registered for resale as a secondary offering on a single registration statement prior to filing “Registration Event”; (v) the Initial Registration Statement, or SEC Effective Date in the case of clause (ii) the Commission informs the Company that all such Registrable Securities cannot, as a result of the application definition of Rule 415, be registered for resale as a secondary offering “Registration Event”; (w) the ability of the Buyer to effect sales pursuant to the Registration Statement in the case of clause (iii) of the definition of “Registration Event”; (x) the listing or inclusion and/or trading of the Common Stock on a single registration statement, the Company agrees to promptly (A) inform each of the Holders thereof and, as applicable, file the Initial Registration Statement, or use reasonable and customary efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (B) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in each case covering the maximum number of such Registrable Securities permitted to be registered thereon, on such form available to the Company to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if the opinion of the Company’s counsel or any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata on the basis of the aggregate number of Registrable Securities owned by each applicable Holder, and under such circumstances, the Company will not be subject to the payment of Liquidated Damages in Section (c). In the event the Company amends the Initial Registration Statement or files a New Registration StatementTrading Market, as the case may be, under clauses (A) or (B) above, the Company will use reasonable and customary efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”). No Holder shall be named as an “underwriter” in any Registration Statement without such ▇▇▇▇▇▇’s prior written consent.
(b) The Company shall use reasonable and customary efforts to cause each Required Registration Statement to be declared effective by the Commission as soon as practicable, and, with respect to the Initial Registration Statement or the New Registration Statement, as applicable, no later than the Effectiveness Deadline, and shall use reasonable and customary efforts to keep each Required Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Required Registration Statement have been sold by the Holders; (ii) the date that all Registrable Securities covered by such Required Registration Statement may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent; (iii) the date such Registrable Securities have ceased to be outstanding; or (iv) the date such Registrable Securities are sold in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Section 8(k) (such time period, the “Effectiveness Period”). The Company shall request effectiveness of a Required Registration Statement as of 4:00 p.m., Philadelphia time, on a Trading Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement within one (1) Business Day of the Effective Date, unless already available on the Commission’s ▇▇▇▇▇ site or successor system. The Company shall file a final Prospectus for a Required Registration Statement with the Commission, as required by Rule 424(b) as promptly as reasonably practicable following the Effective Date.
(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement or the New Registration Statement, as applicable, is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, or (iii) after its Effective Date, (A) such Registration Statement ceases to be effective for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities for which it is required to be effective, or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities (other than during an Allowable Grace Period), (iv) a Grace Period applicable to a Required Registration Statement exceeds the length of an Allowable Grace Period, or (v) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Holders are unable to sell Registrable Securities without restriction under Rule 144, (any such failure or breach in clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (v), the date on which such Event occurs, or for purposes case of clause (iv) of the date on which definition of “Registration Event”; (y) the delivery of such Allowable Grace Period is exceeded, being referred to as an shares or certificates in the case of clause (v) of the definition of “Event DateRegistration Event”), then ; and (z) in addition to any other rights the Holders may have hereunder or under applicable law, on case of the first such Event Dateevents described in clauses (ii) and (iii) of the definition of “Registration Event”, the Company earlier termination of the Registration Period and in each such case any Registration Default Period that commenced by reason of the occurrence of such event shall pay to each Holder an amount in cash, terminate if at the time no other Registration Event is continuing. The amounts payable as partial liquidated damages and not as a penalty (“Liquidated Damages”), equal to 3.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities held by such Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages this paragraph shall be payable (i) if as in lawful money of the relevant Event DateUnited States. Amounts payable as partial liquidated damages hereunder shall cease when the Buyer no longer holds the Preferred Shares, the Warrant or Registrable Securities may be sold by the Holders without volume or manner of sale restrictions under Rule 144, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent, (ii) to a Holder causing an Event that relates to or is caused by any action or inaction taken by such Holder, (iii) to a Holder in the event it is unable to lawfully sell any of its Registrable Securities (including, without limitation, in the event a Grace Period exceeds the length of an Allowable Grace Period) because of possession of material non-public information or (iv) with respect to any period after the expiration of the Effectiveness Period (it being understood that this clause shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period). If the Company fails to pay any Liquidated Damages pursuant to this Section (c) in full within ten (10) Business Days after the date payable, the Company will pay interest on the amount of Liquidated Damages then owing to the Holder at a rate of 0.5% per month on an annualized basis (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. With respect to a Holder, the Effectiveness Deadline for a Required Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of such Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Registration Rights Purchaser)Securities.
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