Registration Procedures and Expenses. The Company hereby agrees that it shall: (a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, prepare and file with the SEC as soon as practicable following such request a registration statement on Form S-3 (the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) the later of the third anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;
Appears in 2 contracts
Sources: Investor Agreement (Fiberstars Inc /Ca/), Investor Agreement (Adlt Class 7 Liquidating Trust)
Registration Procedures and Expenses. The Company hereby agrees that it shallis obligated to do the following:
(a) if requested (and it qualifies under applicable SEC rules) The Company shall use its commercially reasonable efforts to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, prepare and file with the SEC as soon as practicable following such request Commission, not later than the second business day after the date on which the Company files its annual report on Form 10-K for its fiscal year ending December 31, 2006 with the SEC, a registration statement on Form S-3 (or such other registration form that the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit Company may then be eligible to state a material fact required use) in order to be stated therein, or necessary to make register with the statement therein, in light of the circumstances in which they were made, not misleading, to enable Commission the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust Purchasers, from time to time time, of the Shares through Nasdaq or the facilities of any national securities exchange on which the Nasdaq and Company’s Common Stock is then traded, or in privately-negotiated transactions (a “Registration Statement”). The Company shall use all its commercially reasonable efforts to cause such Registration Statement to be declared effective as promptly soon thereafter as possible after filing reasonably practicable.
(b) If such a Registration Statement has been filed, the Company shall use its commercially reasonable efforts to prepare and to remain continuously effective until file with the earlier of Commission (i) the later of the third anniversary of the Transfer, plus, in each case, a number of days equal such amendments and supplements to the number of days, if any, the Registration Statement is suspended or not effective beyond and the Grace Periodprospectus used in connection therewith, (ii) such SEC reports and (iii) such other filings required by the Commission, in each case as may be necessary to keep the Registration Statement effective and not misleading until the earliest of (A) the second anniversary date of the Closing Date, or (B) such time as all Registrable of the Shares subject to held by the Transfer may immediately Purchasers can be sold during any 90 day within a given three-month period pursuant to Rule 144 under the Securities Act. Notwithstanding the foregoing, following the effectiveness of the Registration Statement, the Company may, at any time, suspend the effectiveness of the Registration Statement for up to 60 days, as appropriate (a “Suspension Period”), by giving notice to the Purchasers, if the Company shall have determined that the Company may be required to disclose any material corporate development. Notwithstanding the foregoing, the Company may not suspend the effectiveness of the Registration Statement more than twice during any twelve-month period. Each Purchaser agrees that, upon receipt of any notice from the Company of a Suspension Period, such Purchaser will not sell any Shares pursuant to the Registration Statement until (i) such Purchaser is advised in writing by the Company that the use of the applicable prospectus may be resumed, (ii) such Purchaser has received copies of any additional or supplemental or amended prospectus, if applicable, and (iii) such Purchaser has received copies of any additional or supplemental filings which are incorporated or deemed to be incorporated by reference in such prospectus.
(c) In order to facilitate the closing public sale or other disposition of an acquisition all or any of the Registrable Shares by each Purchaser, the Company shall furnish to each Purchaser with respect to the Shares registered under the Registration Statement such number of copies of prospectuses, prospectus supplements and preliminary prospectuses as such Purchaser reasonably requests in conformity with the requirements of the Securities Act.
(d) The Company shall file any documents required of the Company for normal blue sky clearance in exchange for publicly traded stock states specified in writing by each Purchaser; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented.
(i.e.e) Other than fees and expenses, stock that has been registered if any, of counsel or other advisers to the Purchasers, which fees and expenses shall be borne by the Purchasers, the Company shall bear all expenses (exclusive of any brokerage fees, underwriting discounts and commissions) in connection with the procedures in paragraphs (a) through (d) of this Section 8.1.
(f) With a view to making available to the Purchasers the benefits of Rule 144 promulgated under the Securities Act for issuance (“Rule 144”) and any other rule or regulation of the Commission that may at any time permit a Purchaser to such Investor and is listed on a national securities exchange sell Shares to the public without registration or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such pursuant to registration, the Company covenants and agrees to use its commercially reasonable efforts to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) the second anniversary of the Closing Date or (B) such date as all of the Shares shall use have been resold; (ii) file with the Commission in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to any Purchaser upon request, as long as the Purchaser owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the most recent annual or quarterly report of the Company, and (C) such other form information as is available for may be reasonably requested in order to avail any Purchaser of any rule or regulation of the Commission that permits the selling of any such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension Shares without registration under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;Securities Act.
Appears in 2 contracts
Sources: Common Stock Purchase Agreement (Corcept Therapeutics Inc), Common Stock Purchase Agreement (Corcept Therapeutics Inc)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) subject to receipt of reasonably necessary information from the holder or holders as the case may be, from time to time, of the Registrable Securities (as defined below) (the “Holder” or “Holders”), prepare and file with the Securities and Exchange Commission (“SEC”), within sixty (60) days after the Closing Date (the “Required Filing Date”), a Registration Statement on Form SB-2 (except if requested the Company is not then eligible to register on Form SB-2, in which case such registration shall be on another appropriate form in accordance herewith) (and it qualifies under applicable SEC rulescollectively, together with any registration statement filed pursuant to clause (b) below, the “Registration Statements”) to undertake an S-3 registration enable the resale by the Trust Holders from time to time of (x) the Shares issuable, (y) the Warrant Shares issuable and (z) the shares of Common Stock issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with regard respect to the Voting Securities subject to the Transfer foregoing (includingcollectively, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A“Registrable Securities”);
(b) use its best efforts, subject to receipt of necessary information from each Holder, to cause each Registration Statement to become effective as soon as practicable, but in no event later than one hundred twenty (120) days after the Trust and the Employees, applicable Required Filing Date;
(c) use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statements and the Prospectus as soon as practicable following such request a registration statement on Form S-3 (the "Registration Statement"), which may be necessary to keep each Registration Statement shall not contain any untrue statement of material fact or omit to state current and effective for a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time period ending on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i1) the later of the third second anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace PeriodClosing, (ii2) the date on which the Holders may sell Registrable Securities pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (3) such time as all Registrable Shares subject to Securities purchased by such Holder in the Transfer may immediately be Offering have been sold during any 90 day period pursuant to a registration statement or Rule 144 under (the Securities Act“Effectiveness Period”), and to notify each Holder promptly upon each Registration Statement and each post-effective amendment thereto, being declared effective by the SEC;
(d) furnish to any Holder such number of copies of the Registration Statements and the Prospectuses (including supplemental prospectuses) as the Holder may reasonably request, in order to facilitate the public sale or (iii) the closing other disposition of an acquisition all or any of the Registrable Securities by the Holder;
(e) file documents required of the Company for normal blue sky clearance in exchange states specified in writing by any Holder; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph (a) through (e) of this Section 1 and the registration of the Registrable Securities pursuant to the Registration Statements;
(g) advise the Holders, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of each Registration Statement or of the initiation of any proceeding for publicly traded stock that purpose; and it will promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued; and
(i.e.h) with a view to making available to the Holders the benefits of Rule 144 and any other rule or regulation of the SEC that may at any time permit the Holders to sell Registrable Securities to the public without registration, stock that has the Company covenants and agrees to use its commercially reasonable efforts to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Holder’s Registrable Securities may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Holders’ Registrable Securities shall have been registered resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act for issuance and under the Exchange Act; and (iii) furnish to such Investor and is listed on each Holder, (A) a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, written statement by the Company shall use that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company’s most recent Annual Report on Form 10-KSB or Quarterly Report on Form 10-QSB, and (C) such other form information as is available for may be reasonably requested in order to avail the Holder of any rule or regulation of the SEC that permits the selling of any such a Registrable Securities without registration. For purposes It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 1.1(a), "Grace Period" 1 that each Holder shall mean furnish to the Company a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days completed Questionnaire in the aggregate in form attached hereto as Exhibit A. The Company understands that each Holder disclaims being an underwriter, but acknowledges that a determination by the SEC that the Holder is deemed an underwriter shall not relieve the Company of any twelve month period of time;obligations it has hereunder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Symbollon Corp), Registration Rights Agreement (Symbollon Corp)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) as soon as practicable, but in no event later than fifteen days following (i) the First Closing Date, in the case of the First Tranche Shares, and (ii) the Second Closing Date, in the case of the Second Tranche Shares and the Option Shares (the “Filing Deadline”), prepare and file with the Commission a Registration Statement on Form S-3 (or, if requested permissible under the Rules and Regulations, a post-effective amendment to a then effective registration statement on such form) relating to the resale of (x) the Shares and it qualifies under applicable SEC rulesthe Option Shares and (y) any shares of Common Stock issued or issuable directly or indirectly with respect to undertake an S-3 registration the securities referred to in clause (x) by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization (together, for purposes of this Section 7, the “Registrable Securities”) by the Trust with regard Purchaser from time to time on The Nasdaq Capital Market, or the Voting Securities subject to facilities of any other national securities exchange on which the Transfer Common Stock is then traded or in privately negotiated transactions;
(including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A)b) use its reasonable best efforts, subject to receipt of necessary information from the Trust and Purchasers whose securities are included therein, to cause the EmployeesCommission to declare the Registration Statement (or post-effective amendment, as applicable) effective within 30 days after the applicable Closing Date or, if the Commission reviews the Registration Statement, within 120 days after the applicable Closing Date (the “Effective Deadline”);
(c) promptly prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the Prospectus as soon as practicable following such request a registration statement on Form S-3 may be necessary to keep the Registration Statement effective until (the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make “Effectiveness Period”) the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier earliest of (i) two years after the later effective date of the third anniversary of the TransferRegistration Statement, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Period, (ii) such time as all the Registrable Shares subject to the Transfer may immediately be sold during any 90 day period Securities become eligible for resale by non-affiliates pursuant to Rule 144 144(k) under the Securities ActAct or any other rule of similar effect, or (iii) the closing of an acquisition such time as all of the Registrable Securities have been sold pursuant to the Registration Statement;
(d) so long as the Registration Statement is effective covering the resale of the Registrable Securities owned by the Purchaser, furnish to the Purchaser with respect to the Shares and the Option Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares and Option Shares) such number of copies of prospectuses and such other documents as the Purchaser may reasonably request, in exchange order to facilitate the public sale or other disposition of all or any of the Registrable Securities by the Purchaser;
(e) file documents required of the Company for publicly traded stock normal Blue Sky clearance in states specified in writing by the Purchaser; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(i.e.f) bear all expenses in connection with the procedures in paragraphs (a) through (e) of this Section 7.1 and the registration of the Registrable Securities pursuant to the Registration Statement, stock that has been registered other than fees and expenses, if any, of counsel or other advisers to the Purchaser or the Other Purchasers (in each case except as otherwise provided herein) or underwriting discounts, brokerage fees and commissions incurred by the Purchaser or the Other Purchasers, if any, in connection with the offering pursuant to the Registration Statement;
(g) file a Form D with respect to offer and sale of the Shares to the Purchaser as required under Regulation D under the Securities Act for issuance and to such Investor provide a copy thereof to the Purchaser promptly after filing; and
(h) file, not later than the next business day after the Closing Date, a Current Report on Form 8-K with the Commission disclosing all material terms of the transactions contemplated hereby in accordance with the applicable Rules and is listed on a national securities exchange or Nasdaq) of another entity (Regulations. The Company understands that the "Registration Period"). In Purchaser disclaims being an underwriter, but the event that Form S-3 is unavailable for such registration, Purchaser being deemed an underwriter shall not relieve the Company shall use such other form of any obligations it has hereunder. A questionnaire related to the Registration Statement to be completed by the Purchaser is attached hereto as is available for such a registration. For purposes part of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;Appendix I.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Babyuniverse, Inc.), Stock Purchase Agreement (Babyuniverse, Inc.)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested as soon as practicable, but in no event later than [five] days following the Closing Date (the “Filing Deadline”), prepare and it qualifies under applicable SEC rules) file with the Commission the Registration Statement on Form S-3 relating to undertake an S-3 registration the resale of the Shares by the Trust with regard Purchaser and the Other Purchasers from time to time on the Voting Securities subject to [Stock Exchange], or the Transfer facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions;
(including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A)b) use its best efforts, subject to receipt of necessary information from the Trust and Purchasers, to cause the EmployeesCommission to declare the Registration Statement effective [upon filing]16 OR [[within [30] days or, if the Registration Statement is selected for review by the Commission, [90] days after the Closing Date]17 (the “Effective Deadline”)];
(c) promptly prepare and file with the SEC as soon as practicable following Commission such request a registration statement on Form S-3 (amendments and supplements to the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to and the prospectus used in connection therewith as may be stated therein, or necessary to make keep the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier earlier18 of (i) one year19 after the later effective date of the third anniversary of the TransferRegistration Statement, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Period, (ii) such time as all Registrable the Shares subject to become eligible for resale by each of the Transfer may immediately be sold during Purchasers without any 90 day period volume limitations or other restrictions pursuant to Rule 144 under the Securities ActAct or any other rule of similar effect; provided that, or (iii) for the closing avoidance of an acquisition doubt, in no event shall the Company have any obligation to keep the Registration Statement effective after such time as all of the Registrable Securities in exchange for publicly traded stock Shares have been sold pursuant to the Registration Statement or Rule 144;
(i.e., stock that has been d) furnish to the Purchaser with respect to the Shares registered under the Securities Act Registration Statement (and to each underwriter, if any, of such Shares) such number of copies of prospectuses and such other documents as the Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Purchaser;
(e) file documents required of the Company for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (normal Blue Sky clearance in states specified in writing by the "Registration Period"). In the event Purchaser; provided, however, that Form S-3 is unavailable for such registration, the Company shall use such other form as not be required to qualify to do business or consent to service of process in any jurisdiction in which it is available for such a registration. For purposes not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraphs (a) through (e) of this Section 1.1(a)7.1 and the registration of the Shares pursuant to the Registration Statement, "Grace Period" shall mean other than fees and expenses, if any, of counsel or other advisers to the Purchaser or the Other Purchasers or underwriting discounts, brokerage fees, and commissions incurred by the Purchaser or the Other Purchasers, if any in connection with the offering of the Shares pursuant to the Registration Statement;
(g) file a suspension Form D with respect to the Shares as required under Section 1.2(bRegulation D and to provide a copy thereof to the Purchaser promptly after filing;
(h) and 1.2(cissue a press release describing the transactions contemplated by this Agreement on the Closing Date; and
(i) in excess of sixty (60) days in order to enable the aggregate in any twelve month Purchasers to sell the Shares under Rule 144 to the Securities Act, for a period of time;one year from Closing,20 use its commercially reasonable efforts to comply with the requirements of Rule 144, including without limitation, use its commercially reasonable efforts to comply with the requirements of Rule 144(c)(1) with respect to public information about the Company, and to timely file all reports required to be filed by the Company under the Exchange Act.21 The Company understands that the Purchaser disclaims being an underwriter, but the Purchaser being deemed an underwriter shall not relieve the Company of any obligations it has hereunder. A draft of the proposed form of the questionnaire related to the Registration Statement to be completed by the Purchaser is attached hereto as Appendix I.
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested As soon as practicable, but in any event no later than one hundred twenty (and it qualifies under applicable SEC rules120) to undertake an S-3 registration by days following the Trust with regard to the Voting Securities subject to the Transfer (includingdate of this Agreement, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, Company shall prepare and file with the SEC as soon as practicable following such request Commission a registration statement on Form S-3 SB-2 or other applicable form as determined by the Company (the "“Registration Statement"), which Registration Statement shall not contain any untrue statement ”) for the purpose of material fact or omit to state a material fact required to be stated therein, or necessary to make registering the statement therein, in light sale of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") Shares by the Trust Purchaser from time to time on the Nasdaq facilities of any securities exchange or trading system on which the Common Stock is then traded or in privately-negotiated transactions, which Registration Statement shall contain all material non-public information disclosed to the Purchasers by the Company in connection with the issuance and sale of the Shares. For purposes of this Section 7.1, the term “Shares” shall include any other securities of the Company issued in exchange for the Shares, as a dividend on the Shares or in connection with a stock split or other reorganization transaction affecting the Shares. The Company shall use all its commercially reasonable efforts to cause such the Registration Statement to be declared become effective as promptly soon as possible after filing practicable.
(b) The Company shall prepare and file with the Commission such amendments and supplements to remain continuously the Registration Statement and the prospectus forming a part thereof as may be necessary to keep the Registration Statement effective until the earlier earliest date, after the date on which all of the Shares have been purchased pursuant to this Agreement or the obligation of the Purchaser to purchase the Shares pursuant to this Agreement has been terminated, on which (i) all the later Shares have been disposed of the third anniversary of the Transfer, plus, in each case, a number of days equal pursuant to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace PeriodStatement, (ii) such time as all Registrable of the Shares subject to then held by the Transfer Purchaser may immediately be sold during any 90 day period under the provisions of Rule 144 without limitation as to volume, whether pursuant to Rule 144 under the Securities Act144(k) or otherwise, or (iii) the closing of an acquisition of Company has determined that all Shares then held by the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered Purchaser may be sold without restriction under the Securities Act for issuance and has removed any stop transfer instructions relating to such Investor Shares and is listed offered to cause to be removed any restrictive legends on a national securities exchange or Nasdaq) of another entity the certificates, if any representing such Shares (the "period between the Effective Date and the earliest of such dates is referred to herein as the “Registration Period"”). In At any time after the event that Form S-3 is unavailable for such registrationend of the Registration Period, the Company shall use such other form as is available for such a registration. For purposes of may withdraw the Registration Statement and its obligations under this Section 1.1(a), "Grace Period" shall mean a suspension 7 (other than its obligations under Section 1.2(b7.3) shall automatically terminate.
(c) The Purchaser agrees to comply with all federal and 1.2(cstate securities laws and the rules and regulations promulgated thereunder in connection with any sale by it of the Shares, whether or not such sale is pursuant to the Registration Statement. In connection with the sale of any Shares pursuant to the Registration Statement, but without limiting the generality of the foregoing sentence, the Purchaser shall (i) comply with the provisions of Regulation M promulgated under the Exchange Act, and (ii) deliver to the purchaser of Shares the prospectus forming a part of the Registration Statement and all relevant supplements thereto which have been provided by the Company to the Purchaser on or prior to the applicable delivery date.
(d) The Company shall not be obligated to prepare and file a post-effective amendment or supplement to the Registration Statement or the prospectus constituting a part thereof during the continuance of a Blackout Event. A “Blackout Event” means any of the following: (a) the possession by the Company of material information that is not ripe for disclosure in excess a registration statement or prospectus, as determined in good faith by the Chief Executive Officer or the Board of sixty (60) days Directors of the Company or that disclosure of such information in the aggregate Registration Statement or the prospectus constituting a part thereof would be detrimental to the business and affairs of the Company; or (b) any material engagement or activity by the Company which would, in any twelve month period the good faith determination of the Chief Executive Officer or the Board of Directors of the Company, be adversely affected by disclosure in a registration statement or prospectus at such time;.
Appears in 2 contracts
Sources: Stock Purchase Agreement (NaturalNano , Inc.), Stock Purchase Agreement (NaturalNano , Inc.)
Registration Procedures and Expenses. The Following receipt of the Registration Request, the Company hereby agrees that it shall:
(a) if subject to receipt of necessary information from Pfizer, including the information requested (in the Registration Questionnaire, use its reasonable best efforts to prepare and it qualifies under applicable file the Registration Statement with the SEC rules) to undertake an S-3 registration by the Trust with regard on or prior to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions 30th calendar day following receipt of the Exhibit ARegistration Request (the “Filing Date”);
(b) use its reasonable best efforts, subject to receipt of necessary information from Pfizer, including the Trust information requested in the Registration Questionnaire, to cause the Registration Statement to become effective within 90 calendar days after the Filing Date, or within 120 calendar days after the Filing Date if the SEC determines to review such Registration Statement;
(c) use its reasonable best efforts, subject to the provisions of Section 5.5 below, to (i) comply with all applicable rules and regulations of the SEC under the Securities Act and the EmployeesExchange Act, including, without limitation, Rule 172 under the Securities Act, (ii) promptly prepare and file with the SEC as soon as practicable following such request a registration statement on Form S-3 (amendments and supplements to the "Registration Statement", (iii) promptly prepare and file with the SEC the Prospectus, as defined below, including any supplement or amendment thereof, used in connection therewith, (iv) promptly inform Pfizer in writing if, at any time during the Registration Period (as defined below), which the Company becomes aware of the fact that it does not satisfy the conditions specified in Rule 172(c) of the Securities Act and, as a result thereof, Pfizer is required to deliver a Prospectus in connection with any disposition of Registrable Securities, and (v) take all such other actions as may be reasonably necessary to keep the Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq current and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) the later of the third anniversary of the Transfer, pluseffective, in each case, for a number period (the “Registration Period”) not exceeding the earliest of days equal to (A) one year after the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace PeriodFiling Date, (iiB) the date on which all Registrable Securities then held by Pfizer may be sold or transferred in compliance with Rule 144 under the Securities Act (or any other similar provisions then in force) without any volume or manner of sale restrictions thereunder, or (C) such time as all Registrable Shares subject Securities held by Pfizer have been sold (1) pursuant to a registration statement, (2) to or through a broker or dealer or underwriter in a public distribution or a public securities transaction or (3) in a transaction exempt from the registration and prospectus delivery requirements of the Securities Act under Section 4(1) thereof so that all transfer restrictions and restrictive legends with respect thereto, if any, are removed upon the consummation of such sale;
(d) during the Registration Period, promptly furnish to Pfizer with respect to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 Registrable Securities registered for the account of Pfizer under the Registration Statement such reasonable number of copies of the Prospectus as Pfizer may request, including any supplements to or amendments to the Prospectus, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities Actby Pfizer;
(e) during the Registration Period, promptly take such action as may be necessary to qualify, or (iii) obtain, an exemption for the closing Registrable Securities under such of the state securities laws of United States jurisdictions as shall be necessary to qualify, or obtain an acquisition exemption for, the sale of the Registrable Securities in exchange states specified in writing by Pfizer; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented, subject itself to general taxation in any such jurisdiction or provide any undertakings that cause the Company undue expense or burden;
(f) bear all expenses in connection with the procedures in paragraphs (a) through (e) and (g) of this Section 5.2 and the registration of the Registrable Securities pursuant to the Registration Statement, regardless of whether a Registration Statement becomes effective, including without limitation: (i) all registration and filing fees and expenses (including filings made with Nasdaq); (ii) fees and expenses of compliance with federal securities and state “blue sky” or securities laws; (iii) expenses of printing or copying (including printing certificates for publicly traded stock the Registrable Securities and copying Prospectuses); (i.e.iv) all application and filing fees, stock if any, in connection with listing of the Registrable Securities with Nasdaq; and (v) all fees and disbursements of counsel of the Company and independent certified public accountants of the Company; provided, however, that Pfizer shall be responsible for paying the underwriting commissions or brokerage fees, taxes of any kind (including, without limitation, transfer taxes) applicable to any disposition, sale or transfer of Pfizer’s Registrable Securities, and (except as set forth in Section 5.5) fees and expenses, if any, of counsel or other advisors to Pfizer. The Company shall, in any event, bear its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties);
(g) during the Registration Period, advise Pfizer promptly, but in any event within two business days, by e-mail, fax or other type of communication, and, if requested by such person, confirm such advice in writing: (i) after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose, or any other order issued by any state securities commission or other regulatory authority suspending the qualification or exemption from qualification of such Registrable Securities under state securities or “blue sky” laws; and it will, subject to the provisions of Section 5.4 below, promptly use its reasonable best efforts to prevent the issuance of any stop order or other order or to obtain its withdrawal at the earliest possible moment if such stop order or other order should be issued; (ii) when the Prospectus or any supplements to or amendments of the Prospectus have been filed, and, with respect to the Registration Statement or any post-effective amendment thereto, when the same has been registered become effective; and (iii) when the SEC notifies the Company whether there will be a “review” of such Registration Statement and whenever the SEC comments in writing on such Registration Statement (the Company shall provide true and complete copies thereof and all written responses thereto to Pfizer that pertain to Pfizer as Selling Stockholder or to the Plan of Distribution (as defined below), but not information which the Company believes would constitute material and non-public information);
(h) except if otherwise required pursuant to written comments received from the SEC upon a review of such Registration Statement, include in the Registration Statement the “Plan of Distribution” attached hereto as Exhibit D;
(i) neither the Company nor any of its securities holders may include securities of the Company (other than the Shares) in any Registration Statement filed pursuant to this Agreement unless (A) required under the Securities Act for issuance terms of any registration rights provisions set forth in any of the agreements listed as exhibits to such Investor the Company’s 10-K or (B) otherwise agreed to by Pfizer, and is listed the Company shall not during the Registration Period enter into any agreement in contravention of the foregoing;
(j) not less than three business days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto (other than (i) Annual Reports on a national securities exchange Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and any similar or Nasdaqsuccessor reports or other documents incorporated by reference therein and (ii) any post-effective amendment de-registering Shares at the end of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use furnish to Pfizer copies of the “Selling Stockholder” section of such other form document, the “Plan of Distribution,” and any risk factor contained in such document that addresses specifically this transaction or Pfizer, as proposed to be filed (the date any such document is available for such a registration. For purposes of this Section 1.1(aprovided to Pfizer being hereinafter referred to as the “Notice Date”), "Grace Period" which documents will be subject to the review and comment (but not approval) of Pfizer and its counsel; provided that, the failure of Pfizer or its counsel to respond to such proposed documents within two business days after the Notice Date shall mean a suspension under Section 1.2(bbe deemed approval of same; and provided, further, that no such review and comment shall inhibit the Company from filing the Registration Statement, any Prospectus or any such amendment or supplement within five business days after the Notice Date or otherwise from complying with its obligations hereunder;
(k) respond as promptly as practicable to any comments received from the SEC with respect to each Registration Statement or any amendment thereto and, as promptly as practicable, provide to Pfizer copies of all material correspondence from and 1.2(c) in excess of sixty (60) days to the SEC relating to such Registration Statement that would not result in the aggregate disclosure to Pfizer of material and non-public information concerning the Company;
(l) comply in all material respects with the provisions of the Securities Act, the Exchange Act and all rules of the SEC promulgated thereunder with respect to the Registration Statement and the disposition of all Registrable Securities covered by the Registration Statement; and
(m) upon any twelve month period sale of time;Registrable Securities pursuant to the Registration Statement for the account of Pfizer, cooperate with Pfizer to facilitate the timely preparation and delivery of stock certificates representing such Registrable Securities to be delivered to the transferee thereof pursuant to the Registration Statement, which certificates shall be free of all restrictive legends; provided, that the delivery of such certificates shall be subject to the payment by Pfizer of any transfer taxes, if applicable.
Appears in 2 contracts
Sources: Collaborative Research & License Agreement (Icagen Inc), Purchase Agreement (Icagen Inc)
Registration Procedures and Expenses. The Company hereby agrees that it Purchaser shall:
(a) if requested as soon as practicable after the closing date but in no event later than ninety (90) days after the closing date, prepare and it qualifies file with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 which meets the requirements of Rule 415 promulgated under applicable SEC rulesthe Securities Act (a "Shelf Registration Statement") to undertake an S-3 registration covering the sale by the Trust with regard Stockholder from time to time of all of the shares of the Purchaser Common Stock received by the Stockholder in the Merger. The foregoing notwithstanding, Purchaser shall have no obligation to file a Shelf Registration Statement or to maintain the effectiveness of any previously filed Shelf Registration Statement if the sale of the Purchaser Common Stock pursuant to exemption from registration under Rule 144 is available to the Voting Securities subject to the Transfer (includingStockholder. Further, the Employee Shares should Purchaser may extend its obligation to file a registration statement if the Employees execute Purchaser advises the Stockholder that there is a joinder agreeing to be bound by the terms pending, but unannounced transaction or development which Purchaser determines is not then appropriate for disclosure, and provisions that registration of the Exhibit A)Purchaser Common Stock would require such disclosure.
(b) use its best efforts, subject to receipt of necessary information from the Trust and Stockholder, to cause each of the Employees, Shelf Registration Statements to become effective;
(c) prepare and file with the SEC Commission such amendments and supplements to the Shelf Registration Statements and the prospectus used in connection therewith as soon as practicable following may be necessary to keep the Shelf Registration Statements effective until the earlier of the date on which the Purchaser Common Stock registered by such request a registration statement on Form S-3 (the "Registration Statement"), which Shelf Registration Statement shall not contain has been sold, or one year from the date of the initial filing thereof;
(d) during the period referred to in (c) above, prepare and promptly file with the Commission, and promptly notify the Stockholder of the filing of, such amendment or supplement to each such Shelf Registration Statement and the prospectus as may be necessary to correct any statements or omissions if, at any time when a prospectus relating to the Purchaser Common Stock is required to be delivered under the Securities Act, any event has occurred the result of which is that any such prospectus then in effect would include or incorporate an untrue statement of a material fact or omit to state a any material fact required to be stated therein, or necessary to make the statement therein, statements therein not misleading in light of the circumstances in which they were made;
(e) advise the Stockholder, not misleadingpromptly after it shall receive notice or obtain knowledge thereof, to enable the resale of the shares issuance of Company any stop order by the Commission suspending the effectiveness of any of such Shelf Registration Statements or the initiation or threatening of any proceeding for that purpose and promptly use its diligent best efforts to prevent the issuance of any stop order and to obtain its withdrawal if such stop order should be issued;
(f) furnish to the Stockholder with respect to the Purchaser Common Stock registered under any of the Shelf Registration Statements such number of copies of prospectuses and preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Stockholder may reasonably request (but in no event more than 100 copies), in order to facilitate the public sale or other disposition of all or any of the registered Purchaser Common Stock by the Stockholder; provided, however, that the obligation of Purchaser to deliver copies of prospectuses or preliminary prospectuses to the Stockholder shall be subject to the Transfer receipt by Purchaser of reasonable assurances from the Stockholder that the Stockholder will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such prospectuses or preliminary prospectuses;
(the "Registrable Shares"g) file documents required of Purchaser for normal blue sky clearance in states reasonably specified in writing by the Trust from time Stockholder, provided, however, that Purchaser shall not be required to time on qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented; and
(h) bear all expenses in connection with the Nasdaq procedures in paragraphs (a) through (g) of this Section 11.1 and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) the later registration of the third anniversary Purchaser Common Stock pursuant to each of the TransferShelf Registration Statements, plus, in each case, a number of days equal to the number of daysother than fees and expenses, if any, the Registration Statement is suspended of counsel or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject other advisers to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;Stockholder.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Sylvan Learning Systems Inc), Agreement and Plan of Reorganization (Sylvan Learning Systems Inc)
Registration Procedures and Expenses. The Parent Company hereby agrees that it shall cause the Subsidiary Company to, and the Subsidiary Company shall:
(a) use its best efforts to file with the SEC not later than September 15, 1997 a shelf registration statement under the Securities Act on Form S-3, if requested the Subsidiary Company is eligible to file a registration statement under such form (and it qualifies if the Subsidiary Company is not eligible to file a registration statement under applicable Form S-3, to file with the SEC rules) a registration statement under the Securities Act on Form S-1 or any other form which is appropriate), to undertake an S-3 register the Conversion Shares and Warrant Shares, and to use its best efforts to cause such registration statement to be declared effective by the Trust with regard SEC by not later than December 15, 1997. Such registration statement will also cover shares issuable upon conversion of Series A Preferred Stock of CXI sold by CXI pursuant to the Voting Securities subject to the Transfer a certain Stock Purchase Agreement dated as of August 15, 1997;
(including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A)b) use its best efforts, subject to receipt of necessary information from the Trust and the EmployeesPurchaser, to cause such Registration Statement to become effective as promptly after filing as practicable;
(c) prepare and file with the SEC as soon as practicable following such request a registration statement on Form S-3 (the "Registration Statement"), which amendments and supplements to such Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to and the prospectus used in connection therewith as may be stated therein, or necessary to make keep such Registration Statement effective until termination of such obligation as provided in Section 8.9 below;
(d) furnish to the statement thereinPurchaser with respect to the CXI Common Stock registered on the Registration Statement (and to each underwriter, if any, of such CXI Common Stock) such number of copies of prospectuses in conformity with the requirements of the Securities Act and such other documents as the Purchaser may reasonably request, in light order to facilitate the public sale or other disposition of all or any of the circumstances CXI Common Stock by the Purchaser; provided, however, that the obligation of the Subsidiary Company to deliver copies of prospectuses to the Purchaser shall be subject to the receipt by the Subsidiary Company of reasonable assurances from the Purchaser that the Purchaser will comply with the applicable provisions of the Securities Act and of such other securities laws as may be applicable in which they were made, not misleading, to enable connection with any use of such prospectuses;
(e) file such documents as may be required of the Subsidiary Company for normal securities law clearance for the resale of the shares of Company Common Stock subject to in which states of the Transfer (the "Registrable Shares") United States as may be reasonably requested by the Trust from time to time on Purchaser; provided, however, that the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) the later of the third anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Subsidiary Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) not be required in excess of sixty (60) days in the aggregate in any twelve month period of time;connection with
Appears in 2 contracts
Sources: Securities Purchase Agreement (Commodore Environmental Services Inc /De/), Securities Purchase Agreement (Commodore Environmental Services Inc /De/)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested as soon as reasonably practicable, but in no event later than ten (10) days following the Closing Date, prepare and it qualifies under applicable SEC rules) file with the Commission the Registration Statement on Form S-3 relating to undertake an S-3 registration the sale of the Shares and the Warrant Shares by the Trust with regard Purchaser and the Other Purchasers from time to time on the Voting Securities subject to American Stock Exchange or the Transfer facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions;
(including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A)b) use its best efforts, subject to receipt of necessary information from the Trust and Purchasers, to cause the EmployeesCommission to declare the Registration Statement effective within forty-five (45) days after the Closing Date or, in the event of a review of the Registration Statement by the Commission, within sixty (60) days after the Closing Date;
(c) use its best efforts to promptly prepare and file with the SEC as soon as practicable following Commission such request a registration statement on Form S-3 (amendments and supplements to the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to and the prospectus used in connection therewith as may be stated therein, or necessary to make keep the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier earliest of (i) two years after the later effective date of the third anniversary of the TransferRegistration Statement, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Period, (ii) such time as all Registrable the Shares subject to and the Transfer may immediately be sold during any 90 day period Warrant Shares become eligible for resale by non-affiliates pursuant to Rule 144 under the Securities Act, or (iii144(k) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act of 1933, as amended;
(d) furnish to the Purchaser with respect to the Shares and the Warrant Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares or Warrant Shares) such number of copies of prospectuses and such other documents as the Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares and the Warrant Shares by the Purchaser;
(e) file documents required of the Company for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (normal Blue Sky clearance in states specified in writing by the "Registration Period"). In the event Purchaser; provided, however, that Form S-3 is unavailable for such registration, the Company shall use such other form as not be required to qualify to do business or consent to service of process in any jurisdiction in which it is available for such a registration. For purposes not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraphs (a) through (e) of this Section 1.1(a)7.1 and the registration of the Shares and the Warrant Shares pursuant to the Registration Statement, "Grace Period" other than fees and expenses, if any, of counsel or other advisers to the Purchaser or the Other Purchasers or underwriting discounts, brokerage fees and commissions incurred by the Purchaser or the Other Purchasers, if any;
(g) file a Form D with respect to the Securities as required under Regulation D and to provide a copy thereof to the Purchaser promptly after filing;
(h) issue a press release describing the transactions contemplated by this Agreement on the Closing Date; and
(i) make available, while the Registration Statement is effective and available for resale, its Chief Executive Officer, Chief Financial Officer, and Chief Operating Officer for questions regarding information which the Purchaser may reasonably request in order to fulfill any due diligence obligation on its part. The Company understands that the Purchaser disclaims being an underwriter, but the Purchaser being deemed an underwriter shall mean a suspension under Section 1.2(b) and 1.2(c) in excess not relieve the Company of sixty (60) days in any obligations it has hereunder. A questionnaire related thereto to be completed by the aggregate in any twelve month period of time;Purchaser is attached hereto as Appendix I.
Appears in 2 contracts
Sources: Purchase Agreement (Intelli Check Inc), Purchase Agreement (Intelli Check Inc)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by Promptly following the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the EmployeesClosing, prepare and file with the SEC as soon as practicable following such request a registration statement on Form S-3 (the "Registration Statement")) on Form S-3 (or, if the Company is not then eligible to use such form, on any other form of registration statement promulgated by the SEC which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable would cover the resale of the shares Shares) covering the resale of the Shares by the Investor from time to time; provided however, that the Company Common Stock will furnish to the Investor and its counsel copies of all documents proposed to be filed, which documents will be subject to the Transfer review of such counsel, and the Company will give reasonable consideration in good faith to any comments of Investor and such counsel regarding such registration statement.
(b) Use its reasonable best efforts to cause the Registration Statement to become effective as soon as practicable, but in no event later than 90 days after the Closing Date. If the Registration Statement is not declared effective by 135 days after the Closing Date for reasons other than undue delays occasioned by the Securities and Exchange Commission and of which the Company will give Investor notice and which Investor agrees are undue delays, which agreement will not be unreasonably withheld, the Purchaser shall be entitled to receive a penalty payment accruing at the rate of fifty thousand dollars ($50,000) per month on the amount of the Aggregate Purchase Price from the 136th day after the Closing Date until the Registration Statement becomes effective, the accrued and unpaid amount of such payment to be paid on the last day of each month up to and including the month in which the Registration Statement becomes effective.
(c) Use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to each Investor's Shares purchased hereunder, the earlier of the date on which the Investor may sell all Shares then held by the Investor without restriction under Rule 144 of the Securities Act, or such time as no Shares are held by the Investor. Notwithstanding the foregoing, following the effectiveness of the Registration Statement, the Company may, at any time, suspend the effectiveness of such Registration Statement for up to 60 days, as appropriate (a "Registrable SharesSuspension Period") by giving notice to the Trust from time Investor, if the Company shall have determined that the Company may be required to time disclose any material corporate development disclosure of which may have a material adverse effect on the Nasdaq Company. No more than two Suspension Periods may occur in any twelve month period unless, in the good faith judgment of the Company's Board of Directors, upon advice of counsel, the sale of Shares under the Registration Statement in reliance on this paragraph 9.1(c) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in potential liability to the Company. The period of any such suspension of the Registration Statement shall be added to the period of time the Company has agreed in this subsection (c) to keep the Registration Statement effective. The Company shall use its reasonable best efforts to limit the duration and number of any Suspension Periods. The Investor agrees that, upon receipt of any notice from the Company of a Suspension Period, the Investor shall discontinue disposition of the Shares under such Registration Statement and applicable prospectus until the Investor (i) is advised in writing by the Company that the use of the applicable prospectus may be resumed, (ii) has received copies of a supplemental or amended prospectus, if applicable, and (iii) has received copies of any additional or supplemental filings which are incorporated or deemed to be incorporated by reference in such prospectus.;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, prospectuses and preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 9.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investor, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and it will promptly use its reasonable efforts to cause prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such Registration Statement stop order should be issued.
(h) With a view to be declared effective making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as promptly as possible after filing those terms are understood and to remain continuously effective defined in Rule 144, until the earlier of (iA) the later such date as all of the third anniversary Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Period, Investor's Shares shall have been resold; (ii) such time as file with the SEC in a timely manner all Registrable Shares subject to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition reports and other documents required of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered Company under the Securities Act for issuance and under the Exchange Act; and (iii) during the period referred to such Investor and is listed on a national securities exchange or Nasdaqin clause (i) of another entity this paragraph furnish to the Investor upon request, (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, A) a written statement by the Company shall use that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other form information as is available for may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such a Shares without registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;.
Appears in 2 contracts
Sources: Purchase Agreement (Cerus Corp), Purchase Agreement (Cerus Corp)
Registration Procedures and Expenses. The Company hereby agrees (a) NFC will prepare and file with the SEC, as promptly as reasonably practicable following the Closing, but in no event later than the Filing Deadline, a registration statement on Form S-3 or Form F-3 (or any successor thereto) as applicable covering the resale of the Registrable Securities (the “Short-Form Registration Statement”), and as soon as reasonably practicable thereafter but in no event later than 15 days following the filing of the Short-Form Registration Statement (45 days in the event of a full review of the Short-Form Registration Statement by the SEC), use best efforts to cause such registration statement to be declared effective under the Securities Act. In the event that it shallForm S-3 or Form F-3 (or any successor thereto) as applicable is or becomes unavailable to register the resale of the Registrable Securities at any time prior to the expiration of all Holders’ registration rights pursuant to this Agreement, NFC will prepare and file with the SEC, as promptly as reasonably practicable following the Closing but in no event later than the Filing Deadline, a registration statement on Form S-1 or Form F-1 (or any successor thereto) as applicable covering the resale of the Registrable Securities (the “Long-Form Registration Statement”), and as soon as reasonably practicable thereafter but in no event later than 30 days following the filing of the Long-Form Registration Statement (60 days in the event of a full review of the Long-Form Registration Statement by the SEC), use best efforts to cause such registration statement to be declared effective under the Securities Act.
(b) NFC will use its reasonable best efforts to:
(ai) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, prepare and file with the SEC as soon as practicable following such request a registration statement on Form S-3 (amendments and supplements to the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact and the Prospectus as may be necessary or omit advisable to state a material fact required to be stated therein, or necessary to make keep the statement therein, in light of Registration Statement continuously effective and current for the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") Securities held by the Trust from time to time Holders for a period ending on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) the later of the third anniversary of the Transfer, plus, in each case, a number of days equal date on which all Ordinary Shares initially required to the number of days, if any, the Registration Statement is suspended be registered pursuant to this Agreement cease to be Registrable Securities or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject Securities have been sold pursuant to a registration statement or Rule 144. NFC will notify each Holder promptly upon the Registration Statement and each post-effective amendment thereto being declared effective by the SEC and advise each Holder that the form of Prospectus contained in the Registration Statement or post-effective amendment thereto, as the case may be, at the time of effectiveness meets the requirements of Section 10(a) of the Securities Act or that it intends to file a Prospectus pursuant to Rule 424(b) under the Securities Act that meets the requirements of Section 10(a) of the Securities Act;
(ii) furnish to each Holder and its representatives and counsel in advance of filing the Registration Statement or the Prospectus or any amendment or supplement thereto a copy of a reasonably complete draft of such Registration Statement or Prospectus or any amendment or supplement thereto, and provide Holder the opportunity to object to any information pertaining to Holder that is contained therein and make necessary corrections reasonably requested by Holder with respect to such information prior to filing the Registration Statement or the Prospectus or any amendment or supplement thereto;
(iii) furnish to each Holder with respect to the Transfer Registrable Securities registered under the Registration Statement such number of copies of the Registration Statement and the Prospectus (including supplemental prospectuses) filed with the SEC in conformance with the requirements of the Securities Act and other such documents as the Holder may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities by the Holder;
(iv) make any necessary blue sky filings;
(v) advise the Holders, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and it will promptly use its commercially reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued; and
(vi) with a view to making available to each Holder the benefits of Rule 144 and any other rule or regulation of the SEC that may at any time permit the Holder to sell Registrable Securities to the public without registration, NFC covenants and agrees to use its reasonable best efforts to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Registrable Securities qualify to be resold immediately be sold during any 90 day period without restriction, and without regard for whether NFC has filed and made available the information contemplated by Rule 144(c)(1), pursuant to Rule 144 under the Securities Act, or (iiiB) the closing of an acquisition such date as all of the Registrable Securities shall have been resold pursuant to Rule 144 (and may be further resold without restriction); (ii) file with the SEC in exchange for publicly traded stock (i.e., stock that has been registered a timely manner all reports and other documents required of NFC under the Securities Act for issuance and under the Exchange Act; and (iii) furnish to such Investor the Holder upon request, as long as the Holder owns any Registrable Securities, (A) a written statement by NFC as to whether it has complied with the reporting requirements of the Securities Act and is listed on a national securities exchange or Nasdaqthe Exchange Act, and (B) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form information as may be reasonably requested in order to avail the Holder of any rule or regulation of the SEC that permits the selling of any such Registrable Securities without registration.
(c) NFC will pay the expenses incurred by NFC and each Holder in complying with this Agreement, including, without limitation, all registration and filing fees, FINRA fees, exchange listing fees, fees of transfer agents and registrars, printing expenses, fees and disbursements of counsel, including Founder Parties’ counsel fees up to a maximum of $20,000 plus disbursements, and independent reserve engineers for NFC, blue sky fees and expenses and the expense of any special audits incident to or required by any such registration (but excluding and all underwriting discounts and selling commissions applicable to the sale of Registrable Securities by the Holders).
(d) NFC understands that each Holder disclaims being an underwriter but acknowledges that a determination by the SEC that a Holder is available for such a registration. For purposes deemed an underwriter shall not relieve NFC of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;obligations it has hereunder.
Appears in 2 contracts
Sources: Registration Rights Agreement (New Frontier Health Corp), Registration Rights Agreement (New Frontier Health Corp)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) file a Registration Statement with the SEC within forty-five (45) days following the Closing Date to register the Registrable Shares on Form S-3 under the Securities Act (providing for shelf registration of such Registrable Shares under SEC Rule 415) or, only if requested (and it qualifies under applicable SEC rules) the Company is not eligible to undertake an S-3 registration use Form S-3, on such other form which is appropriate to register such Registrable Shares for resale from time to time by the Trust with regard to the Voting Securities subject to the Transfer Purchasers;
(including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), b) subject to receipt of necessary information from the Trust Purchasers, cause any such Registration Statement filed pursuant to Section 7.1(a) above to become effective as promptly after filing of such Registration Statement as practicable but in any event by the date (the “Effectiveness Deadline Date”) that is ninety (90) days following the Closing Date; provided, however, that in the event that the Registration Statement is reviewed by the SEC (subject to the exception contained in 7.1(b)(1)), then the Effectiveness Deadline Date shall mean, with respect to such Registration Statement, the date that is one hundred twenty (120) days following the Closing Date;
(1) notwithstanding the foregoing, if the SEC reviews the Registration Statement and provides comments solely relating to the Company’s absence of certain Part II or Part III information from the Company’s Annual Report on Form 10-K for the year ended December 31, 2008 (similar to the SEC comment letter issued to the Company March 25, 2008), then such comments shall not be considered a “review” for purposes of Section 7.1(b) and the Employees, Effectiveness Deadline Date in such case shall be 90 days from the Closing Date;
(c) prepare and file with the SEC as soon as practicable following such request a registration statement on Form S-3 (the "Registration Statement"), which amendments and supplements to such Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to and the prospectus used in connection therewith as may be stated therein, or necessary to make keep such Registration Statement continuously effective until termination of such obligation as provided in Section 7.5 below, subject to the statement thereinCompany’s right to suspend pursuant to Section 7.4;
(d) furnish to each Purchaser (and to each underwriter, if any, of such Registrable Shares) such number of copies of prospectuses in conformity with the requirements of the Securities Act and such other documents as the Purchasers may reasonably request, in light order to facilitate the public sale or other disposition of all or any of the circumstances in which they were made, not misleading, to enable Registrable Shares by the Purchasers;
(e) file such documents as may be required of the Company for normal securities law clearance for the resale of the shares Registrable Shares in such states of the United States as may be reasonably requested by each Purchaser; provided, however, that the Company Common Stock subject shall not be required in connection with this paragraph (e) to qualify as a foreign corporation or execute a general consent to service of process in any jurisdiction;
(f) advise each Purchaser promptly:
(1) of the effectiveness of the Registration Statement or any post-effective amendments thereto;
(2) of any request by the SEC for amendments to the Transfer Registration Statement or amendments to the prospectus or for additional information relating thereto;
(3) of the "Registrable Shares") issuance by the Trust from time SEC of any stop order suspending the effectiveness of the Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Registrable Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes; and
(4) of the existence of any fact and the happening of any event that makes any statement of a material fact made in the Registration Statement, the prospectus and amendment or supplement thereto, or any document incorporated by reference therein, untrue, or that requires the making of any additions to time on or changes in the Nasdaq and Registration Statement or the prospectus in order to make the statements therein not misleading;
(g) use all reasonable its best efforts to cause such Registration Statement all Registrable Shares to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) the later of the third anniversary of the Transfer, plus, in listed on each case, a number of days equal to the number of dayssecurities exchange, if any, on which equity securities by the Registration Statement is suspended or not effective beyond Company are then listed; and
(h) bear all expenses in connection with the Grace Period, procedures in paragraphs (iia) such time as all Registrable Shares subject to through (g) of this Section 7.1 and the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition registration of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under Shares on such Registration Statement and the Securities Act for issuance to satisfaction of the blue sky laws of such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;states.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Affymax Inc), Securities Purchase Agreement (Affymax Inc)
Registration Procedures and Expenses. The It is a condition precedent to the obligations of the Company hereby agrees to take any action pursuant to this Section 7.1 that it shall:the Investor furnishes to the Company such information regarding itself, the Shares to be sold by the Investor, and the intended method of disposition of such securities as will be required to effect the registration of the Shares.
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject Subject to receipt of necessary information from the Trust Investor, the Company will use its best efforts to prepare and file with the EmployeesSEC, as soon as practicable, but in no event later than 60 days after the Closing Date (the "Target Filing Date"), a registration statement on Form S-1 (the "Registration Statement") to enable the resale of the Shares issued pursuant to this Agreement and upon exercise of the Warrants by the Investor from time to time through the automated quotation system of the Nasdaq Stock Market or in privately-negotiated transactions.
(b) Subject to receipt of necessary information from the Investor, the Company will use its best efforts to cause the Registration Statement to become effective as soon as practicable, but in no event later than 90 days after the Registration Statement is filed by the Company (the "Target Effective Date"). The plan of distribution disclosed in the Registration Statement shall be subject to the Investor's review, comment and approval.
(c) The Company will use its reasonable efforts to prepare and file with the SEC as soon as practicable following such request a registration statement on Form S-3 (amendments and supplements to the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to and the Prospectus used in connection therewith as may be stated therein, or necessary to make keep the statement thereinRegistration Statement current and effective for a period not exceeding, in light with respect to each Investor's Shares purchased hereunder or acquired upon exercise of the circumstances in which they were madeWarrants, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier earliest of (i) the later of the third anniversary of the TransferClosing Date, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject purchased by such Investor in this Offering, including upon exercise of the Warrants, have been sold pursuant to the Transfer may immediately be sold during any 90 day period a registration statement or pursuant to Rule 144 under (the Securities Act, or "Target Effective Period").
(iiid) The Company will furnish to the closing of an acquisition of Investor with respect to the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor; provided that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor will be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses.
(e) The Company will file documents required of the Company for issuance normal blue sky clearance in states specified in writing by the Investor; provided that the Company will not be required to such qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented.
(f) The Company will bear all expenses in connection with the procedures in paragraphs (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement, including the fees and expenses of one counsel to the Investor and the other parties purchasing shares of the Company's Common Stock on the date hereof. All underwriting discounts, brokerage fees and commissions incurred by the Investor, if any, shall be borne by the Investor.
(g) The Company will advise the Investor, promptly after it receives notice or obtains knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose. The Company will promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC will not relieve the Company of any obligations it has hereunder. But if the Company receives notification from the SEC that the Investor is listed deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC pursuant to Section 7.1(b) will be extended to the earlier of (a) the 90th day after such SEC notification or (b) 120 days after the initial filing of the Registration Statement with the SEC.
(i) If the Registration Statement has not become effective on a national securities exchange or Nasdaq) of another entity (before the "Registration Period"). In the event that Form S-3 is unavailable for such registrationTarget Effective Date, the Company shall use pay liquidated damages to the Investor in an amount equal to 0.02% of the Purchase Price per day beginning on the Target Effective Date. If a stop order is imposed or if for any other reason the effectiveness of the Registration Statement is suspended during the Target Effective Period, then the Company shall pay liquidated damages to the Investor in an amount equal to 0.02% of the Purchase Price per day beginning on the date of such stop order or other form suspension of effectiveness. Notwithstanding the two preceding sentences, the Investor will not be entitled to receive liquidated damages under this Agreement during a Suspension Period (as is available for hereinafter defined). Liquidated damages shall be deemed to commence accruing on the day on which the event triggering such a registrationliquidated damages occurs. For purposes of The liquidated damages to be paid to the Investor pursuant to this Section 1.1(a)7.1(i) shall cease to accrue (i) with respect to the liquidated damages for failure to have the Registration Statement declared effective on or prior to the Target Effective Date, "Grace Period" shall mean a on the day after the Registration Statement is declared effective, or (ii) with respect to the liquidated damages for the suspension under Section 1.2(b) of effectiveness, on the day after the reinstatement of effectiveness of the Registration Statement. Notwithstanding the foregoing, if the sole reason why the Registration Statement has not become effective on or before the Target Effective Date is because the Investor did not provide the Company with information which is required to be disclosed in the Registration Statement and 1.2(c) which the Company reasonably requested the holder to so provide in excess of sixty writing at least five (605) days prior to the Target Effective Date, the Company's obligation to pay liquidated damages with respect thereto will not begin to accrue until five (5) business days after such information has been provided. The Company shall pay the liquidated damages due under this section at the end of each week during which such damages accrue and, to the extent such liquidated damages are not paid when due, shall thereafter accrue dividends at a rate equal to the U.S. prime rate plus the lesser of (i) 1% per annum and (ii) the maximum amount permitted by law. Liquidated damages shall be paid to the Investor by wire transfer in immediately available funds to the aggregate accounts designated by such holders. The parties hereto agree that the liquidated damages provided for in any twelve month period this Section 7.1(i) constitute a reasonable estimate of time;the damages that will be suffered by the holders by reason of the failure of the Registration Statement to be filed, to be declared effective and/or to remain effective, as the case may be, in accordance with this Agreement. The right of the Investor to be paid the liquidated damages provided for in this Section 7.1(i) is the exclusive remedy available to the Investor by reason of the failure of the Registration Statement to be filed, to be declared effective and/or to remain effective, as the case may be.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Energy Conversion Devices Inc), Stock Purchase Agreement (Energy Conversion Devices Inc)
Registration Procedures and Expenses. The Parent Company hereby agrees that it shall cause the Subsidiary Company to, and the Subsidiary Company shall:
(a) use its best efforts to file with the SEC not later than September 15, 1997 a shelf registration statement under the Securities Act on Form S-3, if requested the Subsidiary Company is eligible to file a registration statement under such form (and it qualifies if the Subsidiary Company is not eligible to file a registration statement under applicable Form S-3, to file with the SEC rules) a registration statement under the Securities Act on Form S-1 or any other form which is appropriate), to undertake an S-3 register the Conversion Shares and Warrant Shares, and to use its best efforts to cause such registration statement to be declared effective by the Trust with regard SEC by not later than December 15, 1997. Such registration statement will also cover shares issuable upon conversion of Series A Preferred Stock of CXI sold by CXI pursuant to the Voting Securities subject to the Transfer a certain Stock Purchase Agreement dated as of August 15, 1997;
(including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A)b) use its best efforts, subject to receipt of necessary information from the Trust and the EmployeesPurchaser, to cause such Registration Statement to become effective as promptly after filing as practicable;
(c) prepare and file with the SEC as soon as practicable following such request a registration statement on Form S-3 (the "Registration Statement"), which amendments and supplements to such Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to and the prospectus used in connection therewith as may be stated therein, or necessary to make keep such Registration Statement effective until termination of such obligation as provided in Section 8.9 below;
(d) furnish to the statement thereinPurchaser with respect to the CXI Common Stock registered on the Registration Statement (and to each underwriter, if any, of such CXI Common Stock) such number of copies of prospectuses in conformity with the requirements of the Securities Act and such other documents as the Purchaser may reasonably request, in light order to facilitate the public sale or other disposition of all or any of the circumstances CXI Common Stock by the Purchaser; provided, however, that the obligation of the Subsidiary Company to deliver copies of prospectuses to the Purchaser shall be subject to the receipt by the Subsidiary Company of reasonable assurances from the Purchaser that the Purchaser will comply with the applicable provisions of the Securities Act and of such other securities laws as may be applicable in which they were made, not misleading, to enable connection with any use of such prospectuses;
(e) file such documents as may be required of the Subsidiary Company for normal securities law clearance for the resale of the shares of Company Common Stock subject to in which states of the Transfer (the "Registrable Shares") United States as may be reasonably requested by the Trust from time Purchaser; provided, however, that the Subsidiary Company shall not be required in connection with 21 22 this paragraph (e) to time qualify as a foreign corporation or execute a general consent to service of process in any jurisdiction;
(f) bear all expenses in connection with the procedures in paragraphs (a) through (e) of this Section 8.2 and the registration of the CXI Common Stock on the Nasdaq and use all reasonable efforts to cause such Registration Statement and the satisfaction of the blue sky laws of such states, including the reasonable fees and expenses of legal counsel to the Purchaser in connection with the procedures in paragraph (a) through (e) of this Section 8.2, other than underwriting discounts and selling commissions or expenses required by law to be declared effective as promptly as possible after filing and to remain continuously effective until borne by Purchaser; and
(g) in the earlier of (i) the later event of the third anniversary failure of Company to procure registration, in accordance with Section 8.2(a) of this Agreement, of the TransferConversion Shares and the Warrant Shares prior to any of the dates set forth below in this Section 8.2(g), plusthe Parent Company will pay Purchaser by wire transfer, as liquidated damages for such failure and not as a penalty, for each month or part thereof for which such failure continues or in each casethe event of a Suspension (as defined in Section 8.7) after such date, a number of days an amount equal to the number following percentages of days, if any, the Registration Statement is suspended or not effective beyond Liquidation Preference of all COES Preferred Shares acquired by the Grace Period, (ii) such time as all Registrable Shares subject to the Transfer may immediately be sold during any 90 day period Purchaser pursuant to Rule 144 under the Securities Actthis Agreement which are still owned by such Purchaser and have not been converted: Required Effective Date Percentage ----------------------- ---------- On or before November 19, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e.1997 1% Between November 20 and December 19, stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration1997 2% After December 20, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;1997 3%
Appears in 2 contracts
Sources: Securities Purchase Agreement (Commodore Environmental Services Inc /De/), Securities Purchase Agreement (Commodore Environmental Services Inc /De/)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested as soon as practicable after the Closing, but in no event later than three (and it qualifies under applicable SEC rules3) to undertake an S-3 registration by business days after the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the EmployeesClosing, prepare and file with the SEC Commission a Resale Registration Statement (as soon defined below) covering the resale by the Merr▇▇▇ ▇▇▇c▇ ▇▇▇ties, from time to time, of a number of Shares equal to the number of Purchase Shares in any of the manners specified in the Swap Agreement (the "Initial Resale Registration Statement") and use its best efforts to obtain effectiveness of the Initial Resale Registration Statement as promptly as practicable following such request filing. If the total number of Shares exceeds the number of Shares covered by the Initial Resale Registration Statement, then the Company shall promptly prepare and file with the Commission such additional Resale Registration Statement or Statements as shall be necessary to cover the resale by the Merr▇▇▇ ▇▇▇c▇ ▇▇▇ties of such excess Shares in the same manner as contemplated by the Initial Registration Statement for the Shares covered thereby (each, an "Additional Resale Registration Statement"); provided that prior to issuing any such excess Shares to the Merr▇▇▇ ▇▇▇c▇ ▇▇▇ties, the Company shall cause such Resale Registration Statement to have become effective. For purposes of this Purchase Agreement, "Resale Registration Statement" means the Initial Resale Registration Statement, any Additional Resale Registration Statement or any other registration statement under the Securities Act on Form S-3 covering the resale by the Merr▇▇▇ ▇▇▇c▇ ▇▇▇ties of up to a specified number of Shares, filed and maintained continuously effective by the Company pursuant to the provisions of this Section 7, including the prospectus contained therein (the "Resale Prospectus"), any amendments and supplements to such registration statement, including all post-effective amendments thereto, and all exhibits and all material incorporated by reference into such registration statement. If, pursuant to the terms of the Swap Agreement, either of the Merr▇▇▇ ▇▇▇c▇ ▇▇▇ties desires to sell any Shares prior to the 19 effectiveness of the Initial Resale Registration Statement, the Company acknowledges that the Merr▇▇▇ ▇▇▇c▇ ▇▇▇ties may elect to use for effecting such resales the Company's existing registration statement on Form S-3 (File No. 333-38071) (the "Existing Shelf Registration Statement"), which . The Company shall use its best efforts to maintain the effectiveness of the Existing Shelf Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make until such date as the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) the later of the third anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Initial Registration Statement is suspended or not declared effective beyond and shall cooperate with the Grace Period, (ii) such time as all Registrable Shares subject Merr▇▇▇ ▇▇▇c▇ ▇▇▇ties in the preparation of any prospectus supplement to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days prospectus contained in the aggregate in any twelve month period of timeExisting Shelf Registration Statement;
Appears in 2 contracts
Sources: Purchase Agreement (Crescent Real Estate Equities Co), Purchase Agreement (Crescent Real Estate Equities Co)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested provided that the Company has not obtained Shareholder Approval by the Second Closing Deadline (and it qualifies such condition has not been waived under applicable SEC rulesthe Purchase Agreement by both parties thereto), and subject to receipt of necessary information from the Selling Stockholder or other holder or holders, as the case may be, from time to time, of the Registrable Securities (as defined below) (the “Holder” or “Holders”), prepare and file with the Securities and Exchange Commission (“SEC”), within fifteen (15) Business Days after the Second Closing Deadline (the “Required Filing Date”), a Registration Statement on Form S-3 (except if the Company is not then eligible to register on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith) (the “Registration Statement”) to undertake an S-3 registration enable the resale by the Trust Holder from time to time of the Subsequent Stockholder Shares (as well as shares of Common Stock issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with regard respect to the Voting Securities subject to the Transfer Subsequent Stockholder Shares (includingtogether, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A“Registrable Securities”);
(b) use its best efforts, subject to receipt of necessary information from each Holder, to cause the Trust and the Employees, prepare and file with the SEC Registration Statement to become effective as soon as practicable following such request a registration statement on Form S-3 practicable, but in no event later than ninety (90) days after the Required Filing Date (the "Registration Statement"“Required Effective Date”), which . If the Registration Statement (x) has not been filed by the Required Filing Date, (y) has not been declared effective by the SEC on or before the Required Effective Date, or (z) is filed and declared effective but shall not contain any untrue statement of material fact or omit to state a material fact required thereafter cease to be stated therein, effective or necessary fail to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer be usable for its intended purpose without being succeeded within ten (10) business days (the "Registrable Shares"“Required Cure Date”) by the Trust from time a post-effective amendment to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement that cures such failure and that is itself immediately declared effective, the Company shall, on the Business Day immediately following the Required Filing Date, the Required Effective Date or the Required Cure Date, as the case may be, and each 30th day thereafter, make a payment to be each Holder as partial compensation for such delay (the “Late Registration Payments”) equal to one percent (1%) of the aggregate price of the Registrable Securities, calculated based on a per share price of $5.05, not previously sold by the Holder or otherwise registered by the Company pursuant to Section 5 until the Registration Statement is filed or declared effective by the SEC, as promptly as possible the case may be; provided, however, that in no event shall the payments made pursuant to this paragraph (b), if any, exceed in the aggregate twelve percent (12%) of such aggregate price. Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid to the Holders by wire transfer or check within five Business Days after filing and to remain continuously effective until the earlier of (i) the later end of each thirty day period following the Required Effective Date, Required Filing Date or Required Cure Date, as applicable or (ii) the effective date of the third Registration Statement;
(c) use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement current and effective for a period ending on the earlier of (1) the second anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, date the Registration Statement is suspended declared effective or not effective beyond the Grace Period, (ii2) such time as all Registrable Shares subject to the Transfer may immediately be Securities owned by such Holder have been sold during any 90 day period pursuant to a registration statement or Rule 144 (“Rule 144”) under the Securities ActAct (the “Effectiveness Period”), and to notify each Holder promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective by the SEC;
(d) furnish to any Holder such number of copies of the Registration Statement and the Prospectus (including supplemental prospectuses) as the Holder may reasonably request, in order to facilitate the public sale or (iii) the closing other disposition of an acquisition all or any of the Registrable Securities by the Holder;
(e) file documents required of the Company for normal blue sky clearance in exchange states specified in writing by the Holder; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph (a) through (e) of this Section 1 and the registration of the Registrable Securities pursuant to the Registration Statement;
(g) advise the Holders, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for publicly traded stock that purpose; and it will promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued; and
(i.e.h) with a view to making available to the Holders the benefits of Rule 144 and any other rule or regulation of the SEC that may at any time permit the Holders to sell Registrable Securities to the public without registration, stock that has the Company covenants and agrees to use its commercially reasonable efforts to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Holder’s Registrable Securities may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Holders’ Registrable Securities shall have been registered resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act for issuance and under the Exchange Act; and (iii) furnish to such Investor and is listed on each Holder, (A) a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, written statement by the Company shall use that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other form information as is available for may be reasonably requested in order to avail the Holder of any rule or regulation of the SEC that permits the selling of any such a Registrable Securities without registration. For purposes It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 1.1(a), "Grace Period" 1 that a Holder shall mean furnish to the Company a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days completed Questionnaire in the aggregate in form attached hereto as Exhibit A. The Company understands that the Holder disclaims being an underwriter, but acknowledges that a determination by the SEC that the Holder is deemed an underwriter shall not relieve the Company of any twelve month period of time;obligations it has hereunder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Ediets Com Inc), Registration Rights Agreement (Ediets Com Inc)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
a. subject to receipt of reasonably necessary information from each Holder, prepare and file with the Securities and Exchange Commission (athe “SEC”), as soon as practicable, but in any event within five days, after the filing of the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2010 (the “Filing Date”), a registration statement (the “Registration Statement”) on Form S-3 (except if requested (and it qualifies under applicable SEC rulesthe Company is not then eligible to register on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith) to undertake an S-3 registration enable the resale by the Trust Holders from time to time of (w) the Investor Shares, (x) the Warrant Shares issued or issuable, the (y) Other Shares and (z) the shares of Common Stock issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with regard respect to the Voting Securities subject to the Transfer (includingInvestor Shares, the Employee Warrant Shares should or the Employees execute a joinder agreeing Other Shares (collectively, the “Registrable Securities”); and, if possible at the time of such registration, cause such Registrable Securities to be bound by registered for listing on the terms and provisions of the Exhibit A)Nasdaq Capital Market;
b. use its best efforts, subject to receipt of necessary information from each Holder, to cause the Trust and Registration Statement to become effective as soon as practicable, but in no event later than 30 days after the EmployeesFiling Date (the “Required Effective Date”); provided, however, if the SEC requires the Company to amend or supplement its preliminary Registration Statement, the Required Effective Date shall be no later than 90 days after the Filing Date;
c. use its best efforts to prepare and file with the SEC as soon as practicable following such request a registration statement on Form S-3 amendments and supplements to the Registration Statement and the prospectus (the "Registration Statement"), which “Prospectus”) included as part of the Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to as may be stated therein, or necessary to make keep the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer Registration Statement current and effective for a period (the "Registrable Shares"“Effectiveness Period”) by the Trust from time to time ending on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) the later date on which all Holders may sell all Registrable Securities held by the Holders pursuant to Rule 144 under the Securities Act of 1933, as amended (the third anniversary of the Transfer“Securities Act”), plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Period, any successor rule (“Rule 144”) or (ii) such time as all Registrable Shares subject Securities held by the Holders have been sold pursuant to a registration statement or Rule 144, and to notify each Holder promptly upon such Registration Statement and each post-effective amendment thereto, being declared effective by the SEC; provided, however, if (x) after such Registration Statement has become effective, such registration or the related offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency, court or other person for any reason not attributable to the Transfer Holders and such interference is not thereafter eliminated or (y) the conditions specified in the underwriting agreement, if any, entered into in connection with such registration are not satisfied or waived, other than by reason of a failure by the Holders, then the Company shall use its best efforts to cause such condition or conditions to be remedied and register the Registrable Securities in accordance herewith as soon as possible.
d. furnish to any Holder such number of copies of the Registration Statement and the Prospectus (including supplemental prospectuses) as such Holder may immediately reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities by such Holder;
e. file documents required of the Company for normal blue sky clearance in states specified in writing by each Holder; provided, however, that the Company shall not be sold during required to qualify to do business or consent to service of process in any 90 day period jurisdiction in which it is not now so qualified or has not so consented;
f. bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph (a) through (e) of this Section 1 and the registration of the Registrable Securities pursuant to the Registration Statement, whether or not such registration becomes effective;
g. advise each Holder, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and the Company shall promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued; and
h. with a view to making available to each Holder the benefits of Rule 144 and any other rule or regulation of the SEC that may at any time permit each Holder to sell Registrable Securities to the public without registration, the Company covenants and agrees to use its commercially reasonable efforts to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all Registrable Securities may be resold pursuant to Rule 144 under or any other rule of similar effect of (B) such date as all Registrable Securities shall have been resold; (ii) file with the Securities Act, or (iii) the closing of an acquisition SEC in a timely manner all reports and other documents required of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered Company under the Securities Act for issuance and under the Securities Exchange Act of 1934, as amended (“Exchange Act”); and (iii) furnish to such Investor and is listed on each Holder, (A) a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, written statement by the Company shall use that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other form information as is available for may be reasonably requested in order to avail such a Holder of any rule or regulation of the SEC that permits the selling of any such Registrable Securities without registration. For purposes The Company understands that each Holder disclaims being an underwriter, but acknowledges that a determination by the SEC that such Holder is deemed an underwriter shall not relieve the Company of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;obligations it has hereunder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Prides Capital Partners, LLC), Registration Rights Agreement (Ediets Com Inc)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested as soon as practicable, but in no event later than fifteen days following the Closing Date (the “Filing Deadline”), prepare and it qualifies under applicable SEC rulesfile with the Commission a Registration Statement on Form S-3 relating to the resale of (x) the Conversion Shares, the Warrant Shares and the Condition Shares and (y) any shares of Common Stock issued or issuable directly or indirectly with respect to undertake an S-3 registration the securities referred to in clause (x) by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization (together, for purposes of this Section 7, the “Registrable Securities”) by the Trust with regard Purchaser and the Other Purchasers from time to time on The Nasdaq Capital Market, or the Voting Securities subject to facilities of any other national securities exchange on which the Transfer Common Stock is then traded or in privately-negotiated transactions;
(including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A)b) use its reasonable best efforts, subject to receipt of necessary information from the Trust and Purchasers, to cause the EmployeesCommission to declare the Registration Statement effective within 30 days after the Closing Date or, if the Commission reviews the Registration Statement, within 120 days after the Closing Date (the “Effective Deadline”);
(c) promptly prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the Prospectus as soon as practicable following such request a registration statement on Form S-3 may be necessary to keep the Registration Statement effective until (the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make “Effectiveness Period”) the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier earliest of (i) two years after the later effective date of the third anniversary of the TransferRegistration Statement, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Period, (ii) such time as all the Registrable Shares subject to the Transfer may immediately be sold during any 90 day period Securities become eligible for resale by non-affiliates pursuant to Rule 144 144(k) under the Securities ActAct or any other rule of similar effect, or (iii) the closing of an acquisition such time as all of the Registrable Securities have been sold pursuant to the Registration Statement;
(d) so long as the Registration Statement is effective covering the resale of the Registrable Securities owned by the Purchaser, furnish to the Purchaser with respect to the Conversion Shares, Warrant Shares and Condition Shares registered under the Registration Statement (and to each underwriter, if any, of such Conversion Shares, Warrant Shares and Condition Shares) such number of copies of prospectuses and such other documents as the Purchaser may reasonably request, in exchange order to facilitate the public sale or other disposition of all or any of the Registrable Securities by the Purchaser;
(e) file documents required of the Company for publicly traded stock normal Blue Sky clearance in states specified in writing by the Purchaser; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(i.e.f) bear all expenses in connection with the procedures in paragraphs (a) through (e) of this Section 7.1 and the registration of the Registrable Securities pursuant to the Registration Statement, stock that has been registered other than fees and expenses, if any, of counsel or other advisers to the Purchaser or the Other Purchasers (in each case except as otherwise provided herein) or underwriting discounts, brokerage fees and commissions incurred by the Purchaser or the Other Purchasers, if any, in connection with the offering of the Registrable Securities pursuant to the Registration Statement;
(g) file a Form D with respect to offer and sale of the Securities to the Purchaser as required under Regulation D under the Securities Act for issuance and to such Investor provide a copy thereof to the Purchaser promptly after filing; and
(h) file, not later than the next business day after the Closing Date, a Current Report on Form 8-K with the Commission disclosing all material terms of the transactions contemplated hereby in accordance with the applicable Rules and is listed on a national securities exchange or Nasdaq) of another entity (Regulations. The Company understands that the "Registration Period"). In Purchaser disclaims being an underwriter, but the event that Form S-3 is unavailable for such registration, Purchaser being deemed an underwriter shall not relieve the Company shall use such other form of any obligations it has hereunder. A questionnaire related to the Registration Statement to be completed by the Purchaser is attached hereto as is available for such a registration. For purposes part of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;Appendix I.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Babyuniverse, Inc.), Securities Purchase Agreement (Babyuniverse, Inc.)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by As promptly as reasonably practicable following final Closing, but in no event later than 45 days following the Trust with regard to the Voting Securities subject to the Transfer (includingInitial Closing Date, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, Company shall prepare and file (i) with the SEC as soon as practicable following such request a registration statement on Form S-3 S-1 (the "Registration Statement"or any successor to Form S-1), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable covering the resale of the shares Registrable Securities (as defined below) (such registration statement, together with any registration statement for any Cut Back Shares (as defined below), the “Registration Statement”); and (ii) to the extent required for resale of the Registrable Securities in any state of the United States of America by a Purchaser at the time of or after the effectiveness of the Registration Statement, a registration statement or other applicable document (each a “Blue Sky Registration”) allowing the Purchaser to resell the Registrable Securities in such state in accordance with the blue sky laws of such state. Subject to Section 6.1(b), as soon as reasonably practicable after the Initial Closing Date, but in no event later than 90 days following the Initial Closing Date (120 days in the event of a full review of the Registration Statement by the SEC), the Company shall cause the Registration Statement and each Blue Sky Registration to become effective and effect any related qualification or compliance with respect to all Registrable Securities held by the Purchasers. For purposes of this Agreement, the term “Registrable Securities” shall mean the Warrants, the Shares, the Warrant Shares, and any Common Stock subject of the Company issued as (or issuable upon the conversion or exercise of any warrant, right or other security which is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, any Shares or Warrant Shares. Subject to Section 6.1(b), if the Registration Statement or any Blue Sky Registration has not been declared effective by the applicable governmental authority on or before the date that is 90 days after the Initial Closing Date, or 120 days after the Initial Closing Date in the event of a full review of the Registration Statement by the SEC (the “Required Effective Date”), the Company shall, on the business day immediately following the Required Effective Date and each 30th day thereafter, make a payment to the Transfer Purchasers as partial liquidated damages for such delay (together, the "Registrable Shares"“Late Registration Payments”) equal to 1% (capped at 6%) of the Purchase Price paid for the Shares and Warrants then owned by the Trust from time to time on Purchasers that have not been so registered until the Nasdaq and use all reasonable efforts to cause such Registration Statement to be and each Blue Sky Registration is declared effective as promptly as possible by the applicable governmental authority. Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid to the Purchasers by wire transfer or check within five business days after filing and to remain continuously effective until the earlier of (i) the later end of each 30 day period following the third anniversary Required Effective Date or (ii) the effective date of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond and each Blue Sky Registration. The Company and the Grace Period, (iiPurchaser each acknowledge that the Late Registration Payments provided for in this Section 6.1(a) such time as all Registrable Shares subject bear a reasonable relationship to the Transfer may immediately anticipated loss that would be sold during suffered by the Purchaser for the Company’s failure to comply with the terms of this Section 6.1(a) and the actual loss the Purchaser would suffer for the Company’s failure to comply with the terms of this Section 6.1(a) is difficult to ascertain or incapable of estimation. If the Company fails to pay any 90 day period liquidated damages pursuant to Rule 144 under this section in full within seven days after the Securities Act, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registrationdate payable, the Company shall use will pay interest thereon at a rate of 10% per annum (or such other form as lesser maximum amount that is available for permitted to be paid by applicable law) to the Purchasers, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. “Business day” means any day except Saturday, Sunday and any day that is a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days federal legal holiday in the aggregate in any twelve month period of time;United States.
Appears in 2 contracts
Sources: Common Stock and Warrant Purchase Agreement (Magnegas Corp), Common Stock and Warrant Purchase Agreement (Magnegas Corp)
Registration Procedures and Expenses. The If and whenever the Company hereby agrees that it shallis required by the provisions of Section 4 or 5 hereof to use its best efforts to effect the registration of any of the Restricted Stock under the Securities Act, the Company will, as expeditiously as possible:
(a) if requested prepare (and it qualifies under applicable SEC rulesafford counsel for the selling holders reasonable opportunity to review and comment thereon) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, prepare and file with the SEC as soon as practicable following such request Commission a registration statement (which, in the case of an underwritten public offering pursuant to Section 4 hereof, shall be on Form S-1, S-3 or another fo▇▇ ▇▇ ▇▇neral applicability satisfactory to the managing underwriter selected as therein provided) with respect to such securities and use its best efforts to cause such registration statement to become and remain effective for the period of the distribution contemplated thereby (determined as hereinafter provided);
(b) prepare (and afford counsel for the "Registration Statement"selling holders reasonable opportunity to review and comment thereon) and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith and any documents incorporated by reference therein and file such other documents as may be necessary to keep such registration statement effective for the period specified in paragraph (a) above and to comply with the provisions of the Securities Act with respect to the disposition of all Restricted Stock covered by such registration statement in accordance with the sellers' intended method of disposition set forth in such registration statement for such period;
(c) furnish to each seller and to each underwriter such number of copies of the registration statement and the prospectus included therein (including each preliminary prospectus), and all amendments, supplements, and exhibits thereto, and such other documents as such persons may reasonably request in order to facilitate the public sale or other disposition of the Restricted Stock covered by such registration statement (and the Company hereby consents to the use of any such prospectus, together with such supplements and amendments, by the sellers and underwriters, if any, in connection with the offer and sale covered thereby);
(d) use its best efforts to register or qualify the Restricted Stock covered by such registration statement under the securities or blue sky laws of such jurisdictions as the sellers of Restricted Stock or, in the case of an underwritten public offering, the managing underwriter, shall reasonably request (provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of process in any jurisdiction);
(e) immediately notify each seller under such registration statement and each underwriter, (i) when such registration statement or any post-effective amendment or supplement thereto becomes effective; (ii) of the issuance by the SEC or any state securities authority of any stop order, injunction or other order or requirement suspending the effectiveness of such registration statement (and the Company shall use best efforts to prevent the initiation of proceedings for, prevent the entry of and/or remove such order or requirement); or (iii) of the happening of any event as a result of which Registration Statement shall not contain such registration statement, as then in effect, the prospectus contained therein or any document incorporated by reference therein includes an untrue statement of a material fact or omit omits to state a any material fact required to be stated therein, therein or necessary to make the statement therein, statements therein not misleading in the light of the circumstances in which they were madethen existing;
(f) use its best efforts to furnish, not misleadingat the request of any seller, to enable on the resale of the shares of Company Common date that Restricted Stock subject is delivered to the Transfer (the "Registrable Shares") by the Trust from time underwriters for sale pursuant to time such registration, if such securities are being sold through underwriters, or on the Nasdaq and use all reasonable efforts to cause date that the registration statement becomes effective, if such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of securities are not being sold through underwriters: (i) an opinion dated such date of counsel representing the later Company for the purposes of the third anniversary of the Transfersuch registration, plus, in each case, a number of days equal addressed to the number of daysunderwriters, if any, and to such seller, stating that such registration statement has become effective under the Registration Statement is suspended or not effective beyond the Grace Period, Securities Act and that (iiA) such time as all Registrable Shares subject to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 best knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, or (iiiB) the closing registration statement, the related prospectus, and each amendment or supplement thereof, comply as to form in all material respects with the requirements of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance and the applicable rules and regulations of the Commission thereunder (except that such counsel need express no opinion as to financial statements, the notes thereto, and the financial schedules and other financial and statistical data contained therein) and (C) to such Investor other effects as may reasonably be requested by counsel for the underwriters or by such seller or its counsel, and (ii) a letter dated such date from the independent public accountants retained by the Company, addressed to the underwriters, if any, and to such sellers stating that they are independent public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements of the Company included in the registration statement or the prospectus, or any amendment or supplement thereof, comply as to form in all material respects with the applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (including information as to the period ending no more than five business days prior to the date of such letter) with respect to the registration in respect of which such letter is being given as such underwriters or sellers may reasonably request;
(g) take such actions as may be necessary or appropriate to obtain a CUSIP number (if none exists) for the Common Stock, and make all filings and secure all approvals required pursuant to the regulations of the National Association of Securities Dealers, Inc. in connection with such registration;
(h) take such actions as may be necessary or appropriate to cause the Restricted Stock so to be registered to be listed on a the principal securities exchange (or on the NASDAQ National Market System, as the case may be) on which the Company's Common Stock is then traded (or, in the case of an initial public offering, on such national securities exchange (or Nasdaqon the NASDAQ National Market System) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, as the Company shall elect);
(i) use such other form its best efforts to comply with all applicable rules and regulations of the SEC, and make available to any holder of Restricted Stock, as is soon as reasonably practicable (but not more than 15 months) after the effective date of the registration statement, an earnings statement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations promulgated thereunder; and
(j) make available for inspection by each seller, any underwriter participating in any distribution pursuant to such a registrationregistration statement, and any attorney, accountant or other agent retained by such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement and permit such seller, attorney, accountant or agent to participate in the preparation of such registration statement. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(bparagraphs (a) and 1.2(c(b) above and of Section 4(c) hereof, the period of distribution of Restricted Stock in excess a firm commitment underwritten public offering shall be deemed to extend until each underwriter has completed the distribution of sixty (60) days all securities purchased by it, and the period of distribution of Restricted Stock in any other registration shall be deemed to extend until the earlier of the sale of all Restricted Stock covered thereby or six months after the effective date thereof. In connection with each registration hereunder, the selling holders of Restricted Stock will furnish to the Company in writing such information with respect to themselves and the proposed distribution by them as shall be reasonably necessary in order to assure compliance with federal and applicable state securities laws. In connection with each registration pursuant to Sections 4 and 5 hereof covering an underwritten public offering, the Company agrees to enter into a written agreement with the managing underwriter selected in the aggregate manner herein provided in such form and containing such provisions as are customary in the securities business for such an arrangement between major underwriters and companies of the Company's size and investment stature; provided, however, that such agreement shall not contain any twelve month period such provision applicable to the Company which is inconsistent with the provisions hereof and provided, further, however, that the time and place of time;the closing under said agreement shall be as mutually agreed upon among the Company, such managing underwriter and the selling holders of Restricted Stock.
Appears in 2 contracts
Sources: Registration Rights Agreement (Welsh Carson Anderson Stowe Viii Lp), Registration Rights Agreement (Blackstone CCC Capital Partners Lp)
Registration Procedures and Expenses. The Company hereby agrees that it shall:: ------------------------------------
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, prepare and file with the SEC as soon as practicable following such request SEC, within 90 days after the Closing Date, a registration statement on Form S-3 (the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") Shares by the Trust Investors from time to time on a national securities exchange or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Nasdaq and use all reasonable efforts Investors, to cause such the Registration Statement to be declared become effective as promptly soon as possible practicable, but in no event later than 150 days after filing the Closing Date;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to remain continuously the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective until for a period not exceeding, with respect to the Investor's Shares purchased hereunder, the earlier of (i) the later of the third second anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace PeriodClosing Date, (ii) such time as the date on which the Investor may sell all Registrable Shares subject to then held by the Transfer may immediately be sold during any 90 day period pursuant to Investor without restriction by the volume limitations of Rule 144 under 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement;
(d) furnish to the closing of an acquisition of Investor with respect to the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for issuance normal blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to such Investor and qualify to do business or consent to service of process in any jurisdiction in which it is listed on a national securities exchange not now so qualified or Nasdaqhas not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of another entity this Section 7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the "Investors promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Period"). In Statement or of the event initiation of any proceeding for that Form S-3 is unavailable for purpose; and the Company will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Investor's Shares shall use have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other form information as is available for may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of any such a Shares without registration. For purposes The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of this Section 1.1(a)any obligations it has hereunder, "Grace Period" provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall mean a suspension under Section 1.2(bbe extended to the earlier of (i) and 1.2(cthe 90th day after such SEC notification, or (ii) in excess 150 days after the initial filing of sixty (60) days in the aggregate in any twelve month period of time;Registration Statement with the SEC.
Appears in 2 contracts
Sources: Purchase Agreement (Hanover Compressor Co /), Purchase Agreement (Hanover Compressor Co /)
Registration Procedures and Expenses. The Company hereby agrees that it So long as the ------------------------------------ Stockholder has not initiated the termination of his employment with the Purchaser pursuant to Section 4.01 of the Employment Agreement between the Stockholder and the Purchaser dated as of the date hereof, Purchaser shall:
(a) if requested as soon as practicable after the closing date but in no event later than ninety (90) days after the closing date, prepare and it qualifies file with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 which meets the requirements of Rule 415 promulgated under applicable SEC rulesthe Securities Act (a "Shelf Registration Statement") to undertake an S-3 registration covering the sale by the Trust with regard Stockholder from time to time of one half of the shares of the Purchaser Common Stock received by the Stockholder in the Merger, and as soon as practicable after the first anniversary of the closing date, but in no event later than ninety (90) days after the first anniversary of the closing date, a Shelf Registration Statement covering the sale by the Stockholder from time to time of the remaining shares of Purchaser Common Stock. The foregoing notwithstanding, Purchaser shall have no obligation to file a Shelf Registration Statement or to maintain the effectiveness of any previously filed Shelf Registration Statement if the sale of the Purchaser Common Stock pursuant to exemption from registration under Rule 144 is available to the Voting Securities subject to the Transfer (includingStockholder. Further, the Employee Shares should Purchaser may extend its obligation to file a registration statement if the Employees execute Purchaser advises the Stockholder that there is a joinder agreeing to be bound by the terms pending, but unannounced transaction or development which Purchaser determines is not then appropriate for disclosure, and provisions that registration of the Exhibit A)Purchaser Common Stock would require such disclosure.
(b) use its best efforts, subject to receipt of necessary information from the Trust and Stockholder, to cause each of the Employees, Shelf Registration Statements to become effective;
(c) prepare and file with the SEC Commission such amendments and supplements to the Shelf Registration Statements and the prospectus used in connection therewith as soon as practicable following may be necessary to keep the Shelf Registration Statements effective until the earlier of the date on which the Purchaser Common Stock registered by such request a registration statement on Form S-3 (the "Registration Statement"), which Shelf Registration Statement shall not contain has been sold, or one year from the date of the initial filing thereof;
(d) during the period referred to in (c) above, prepare and promptly file with the Commission, and promptly notify the Stockholder of the filing of, such amendment or supplement to each such Shelf Registration Statement and the prospectus as may be necessary to correct any statements or omissions if, at any time when a prospectus relating to the Purchaser Common Stock is required to be delivered under the Securities Act, any event has occurred the result of which is that any such prospectus then in effect would include or incorporate an untrue statement of a material fact or omit to state a any material fact required to be stated therein, or necessary to make the statement therein, statements therein not misleading in light of the circumstances in which they were made;
(e) advise the Stockholder, not misleadingpromptly after it shall receive notice or obtain knowledge thereof, to enable the resale of the shares issuance of Company any stop order by the Commission suspending the effectiveness of any of such Shelf Registration Statements or the initiation or threatening of any proceeding for that purpose and promptly use its diligent best efforts to prevent the issuance of any stop order and to obtain its withdrawal if such stop order should be issued;
(f) furnish to the Stockholder with respect to the Purchaser Common Stock registered under any of the Shelf Registration Statements such number of copies of prospectuses and preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Stockholder may reasonably request (but in no event more than 100 copies), in order to facilitate the public sale or other disposition of all or any of the registered Purchaser Common Stock by the Stockholder; provided, however, that -------- ------- the obligation of Purchaser to deliver copies of prospectuses or preliminary prospectuses to the Stockholder shall be subject to the Transfer receipt by Purchaser of reasonable assurances from the Stockholder that the Stockholder will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such prospectuses or preliminary prospectuses;
(the "Registrable Shares"g) file documents required of Purchaser for normal blue sky clearance in states reasonably specified in writing by the Trust from time Stockholder, provided, however, that Purchaser shall not be required to time on qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented; and
(h) bear all expenses in connection with the Nasdaq procedures in paragraphs (a) through (g) of this Section 11.1 and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) the later registration of the third anniversary Purchaser Common Stock pursuant to each of the TransferShelf Registration Statements, plus, in each case, a number of days equal to the number of daysother than fees and expenses, if any, the Registration Statement is suspended of counsel or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject other advisers to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;Stockholder.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Sylvan Learning Systems Inc), Agreement and Plan of Reorganization (Sylvan Learning Systems Inc)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, The Company shall prepare and file with the SEC SEC, as soon promptly as reasonably practicable following such request Closing, but in no event later than 45 days following Closing, a registration statement on Form S-3 S-1 (the "Registration Statement"or Form S-3, if available)(or any successor to Form S-1/S-3), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable covering the resale of the shares Registrable Securities (as defined below) (the “Registration Statement”) and as soon as reasonably practicable thereafter but in no event later than 120 days following Closing, to effect such registration and any related qualification or compliance with respect to all Registrable Securities held by the Purchasers. For purposes of Company this Agreement, the term “Registrable Securities” shall mean (i) the Shares and Warrant Shares; and (ii) any Common Stock subject to of the Transfer Company issued as (or issuable upon the conversion or exercise of any warrant, right or other security which is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, any Shares or Warrant Shares. If the Registration Statement has not been declared effective by the SEC on or before the date that is 120 days after Closing (the "Registrable Shares") “Required Effective Date”), the Company shall, on the business day immediately following the Required Effective Date and for each day thereafter, provide each Purchaser, as partial liquidated damages for such delay (together, the “Late Registration/Listing Warrants”), with additional Warrants equal to each Purchaser’s pro rata share of 1% of the Warrants in the Offering. In addition, the Company shall, on the business day immediately following the required day for listing of the shares on the NASDAQ Capital Market under Section 5.2 and for each day thereafter, in the event such required listing has not occurred, provide each Purchaser, as partial liquidated damages for such delay Late Registration/Listing Warrants equal to each Purchaser’s pro rata share of 1% of the Warrants in the Offering. Late Registration/Listing Warrants will be provided to each Purchaser by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible Company within five business days after filing and to remain continuously effective until the earlier of (i) when the later Late Registration Warrant accrued or (ii) the effective date of the third anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Periodlisting of the shares on the NASDAQ Capital Market, as applicable. The Company will provide all Late Registration/Listing Warrants in the form set forth hereto as Exhibit B. The Late Registration/Listing Warrants cease accruing at the earlier of (ii) such time as all Registrable Shares subject to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iiia) the closing of an acquisition Registration Statement being declared effective and the listing of the Registrable Securities shares on the NASDAQ Capital Market and (b) 100 days. Therefore, in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance to such Investor and no case is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) required to issue Late Registration/Listing Warrants in excess of sixty (60) days 200% of the Warrants issued in the aggregate Offering. “Business day” means any day except Saturday, Sunday and any day that is a federal legal holiday in any twelve month period of time;the United States.
Appears in 2 contracts
Sources: Common Stock and Warrant Purchase Agreement (Pacific Grove Capital LP), Common Stock and Warrant Purchase Agreement (Monaker Group, Inc.)
Registration Procedures and Expenses. The Company hereby agrees that that, to the extent not prohibited by any applicable law or applicable interpretation of the staff of the Securities and Exchange Commission (the “SEC”) it shall:
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, prepare and file with the SEC SEC, as soon as reasonably practicable following such request after the Contribution, but in no event more than ten (10) days after the Contribution, a shelf registration statement on Form S-3 covering the Registrable Shares, except to the extent the Company has an existing shelf registration statement covering the Common Stock which may be used for the purposes contemplated herein (such new or existing registration statement and any successor registration statement filed under the Securities Act of 1933, as amended (the "“Securities Act”), hereinafter referred to as the “Registration Statement"”), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of Manager to sell the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust Shares from time to time on in the Nasdaq manner contemplated by the plan of distribution set forth in the Registration Statement, as amended by any prospectus supplement or post-effective amendment thereto, and use all its commercially reasonable efforts to cause such Registration Statement Statement, if not effective on the date of the Contribution, to be declared become effective as promptly as reasonably possible after filing and to remain continuously effective until the earlier earliest of (i) the later of the third anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Perioddate on which all Registrable Shares are sold, (ii) such time as the date on which all Registrable Shares subject may be sold by the Trust to the Transfer public in accordance with Rule 144 under the Securities Act or any successor rule thereto (as such rule may immediately be sold amended from time to time, “Rule 144” and when no conditions of Rule 144 or such successor rule are then applicable to the Trust (other than the holding period requirement in paragraph (d) of Rule 144, so long as such holding period requirement is satisfied at such time of determination), and (iii) the date which is ninety (90) days after the date on which the number of Registrable Shares held by the Trust is less than one percent (1%) of the shares of Common Stock then outstanding (the period from the date of effectiveness until such earliest date, the “Registration Period”); provided, however, that it shall not be required to file the Registration Statement or cause such Registration Statement to be declared effective during the pendency of any 90 day suspension period pursuant to Sections 1.2(b) or (c) below;
(b) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus related thereto filed with the SEC pursuant to Rule 144 424(b) under the Securities Act, or if no such filing is required, as included in the Registration Statement (iiithe “Prospectus”), as may be necessary to keep the Registration Statement effective at all times until the end of the Registration Period; provided, however, that it shall not be required to file any such amendment or supplement during the pendency of any suspension period pursuant to Sections 1.2(b) or (c) below;
(c) furnish the closing Manager with such reasonable number of an acquisition copies of the Prospectus in conformity with the requirements of the Securities Act, and such other documents as the Manager may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities Shares by the Trust;
(d) use its commercially reasonable efforts to file documents required of the Company for normal blue sky clearance in exchange for publicly traded stock such states as the Manager shall reasonably designate in writing; provided, however, that the Company shall not be required to qualify to do business, consent to service of process or subject itself to taxation in any jurisdiction in which it is not now so qualified or has not so consented or become subjected;
(i.e.e) use its reasonable commercial efforts to cause the Registrable Shares to be listed on the New York Stock Exchange as soon as reasonably practicable after the date of the Contribution; and
(f) bear all expenses in connection with the actions contemplated by paragraphs (a) through (e) of this Section 1.1 and the registration of the Registrable Shares pursuant to the Registration Statement, stock including reasonable fees and expenses of legal counsel to the Manager incurred in connection with the registration and sale of the Registrable Shares, such fees and expenses of legal counsel not to exceed twenty five thousand dollars ($25,000) in the aggregate without the Company’s consent (which consent will not be unreasonably withheld or delayed), but excluding underwriting discounts, brokerage fees, commissions and transfer taxes incurred by the Manager or the Trust, if any. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 1.1 that has been registered the Manager shall provide such reasonable assistance to the Company and furnish, or cause to be furnished, to the Company in writing such information regarding the Manager, the Registrable Shares to be sold, and the intended method or methods of disposition of the Registrable Shares, as shall be required to effect the registration of the Registrable Shares and as may be required from time to time under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) rules and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;regulations thereunder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Boeing Co), Registration Rights Agreement (Boeing Co)
Registration Procedures and Expenses. (a) The Company hereby agrees that it shall:
(ai) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from each of the Trust and the EmployeesInvestors, prepare and file with the SEC SEC, as soon as practicable following such request after the Second Closing Date or, if the Second Closing Date shall not occur, as soon as practicable after the provisions of the Agreement relating to the Second Closing have been terminated pursuant to Section 8.4 thereof, a registration statement on Form S-3 (the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, ) to enable the resale of the shares Shares by each of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust Investors from time to time on through the automated quotation system of the Nasdaq and Stock Market or in privately-negotiated transactions;
(ii) (A) use all its reasonable efforts best efforts, subject to receipt of necessary information from each of the Investors, to cause such the Registration Statement to become effective no event later than sixty (60) days after the Registration Statement is filed by the Company, and (B) within five (5) days after the receipt of a no review letter from the SEC, take all appropriate measures necessary to cause the Registration Statement to become effective;
(iii) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus which forms a part thereof (the "Prospectus") as may be declared necessary to keep the Registration Statement current and effective as promptly as possible after filing and for a period not exceeding, with respect to remain continuously effective until the Investors' Shares, the earlier of (i) the later date on which, in the opinion of counsel to the Company, each of the third anniversary of the Transfer, plus, Investors may sell all Shares then held by it in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject to the Transfer may immediately be sold during any 90 90-day period pursuant to Rule 144 under the Securities Act, Act (without restriction by the volume limitations of Rule 144(e)) or (iiiii) such time as all Shares purchased by the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has Investors have been registered sold pursuant to a registration statement under the Securities Act for issuance or pursuant to Rule 144;
(iv) furnish to each of the Investors with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses (including supplemental prospectuses) and preliminary versions of the Prospectus filed with the SEC ("Preliminary Prospectuses") in conformity with the requirements of the Securities Act and such other documents as such Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by such Investor, provided, however, that unless waived by the Company in writing, the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to any Investor shall be subject to the receipt by the Company of reasonable assurances from such Investor that the Investor will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(v) file documents required of the Company for normal blue sky clearance in states reasonably specified in writing by any Investor prior to the effectiveness of the Registration Statement, provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is listed on a national securities exchange not now so qualified or Nasdaqhas not so consented;
(vi) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph (i) through (v) of another entity this Section 1 and the registration of the Shares pursuant to the Registration Statement, including without limitation (a) registration and filing fees with the "Registration Period"SEC, (b) fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of Company counsel in connection with blue sky qualifications of the Shares). In , (c) printing expenses, (d) fees and expenses incurred in connection with the event that Form S-3 is unavailable listing of the Shares, (e) fees and expenses of counsel and independent certified public accountants for the Company (including the expenses of any comfort letters), (f) the fees and expenses of any additional experts retained by the Company in connection with such registration, (g) fees and expenses in connection with any review of underwriting arrangements by the Company shall use such other form as is available for such a registration. For purposes National Association of this Section 1.1(a)Securities Dealers, Inc., including fees and expenses of any "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;qualified independent underwriter,"
Appears in 2 contracts
Sources: Securities Purchase Agreement (Micro Therapeutics Inc), Securities Purchase Agreement (Micro Investment LLC)
Registration Procedures and Expenses. (a) The Company hereby agrees that it shall:
(ai) use its best efforts to file a Registration Statement with the SEC on or before the date that is ten (10) days after the date of termination of the Merger Agreement in accordance with its terms (the “Merger Termination Date” and, such later tenth (10th) day, the “Filing Date”) on Form S-3 under the Securities Act (providing for shelf registration of the resale of such Registrable Shares under Rule 415 under the Securities Act) or on such other form which is appropriate to register such Registrable Shares for resale from time to time by Purchaser; such Registration Statement shall be an “automatic shelf registration statement” (as defined in Rule 405 under the Securities Act) (an “Automatic Shelf Registration Statement”) if requested the Company is then eligible to file an Automatic Shelf Registration Statement; each Registration Statement shall comply in all material respects with the requirements of the Securities Act;
(and it qualifies ii) use its best efforts to cause any such Registration Statement filed pursuant to Section 7.2(a)(i) above to become effective under applicable SEC rules) to undertake an S-3 registration the Securities Act as promptly after filing of such Registration Statement as practicable but in any event by the Trust with regard to date (the Voting Securities subject to “Effectiveness Deadline Date”) that is thirty (30) days following the Transfer (includingFiling Date; provided, however, that in the Employee Shares should event that the Employees execute a joinder agreeing to be bound Registration Statement is reviewed by the terms and provisions of SEC, then such Effectiveness Deadline Date shall be the Exhibit A), subject to receipt of necessary information from date that is ninety (90) days following the Trust and the Employees, Filing Date;
(iii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection therewith, or a new Registration Statement, as soon may be necessary to, and to use its best efforts to, keep at least one Registration Statement continuously effective until termination of such obligation as practicable following provided in Section 7.6 below, subject to the Company’s right to suspend pursuant to Section 7.5;
(iv) furnish to Purchaser (and to each underwriter, if any, of such request Registrable Shares) such number of copies of prospectuses in conformity with the requirements of the Securities Act and such other documents as Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Shares by Purchaser, including a registration statement copy of the prospectus to be furnished to Purchaser pursuant to Section 7.2(g);
(v) file such documents as may be required of the Company for normal securities law clearance for the resale of the Registrable Shares in such states of the United States as may be reasonably requested by Purchaser; provided, however, that the Company shall not be required in connection with this paragraph (e) to qualify as a foreign corporation or execute a general consent to service of process in any jurisdiction;
(vi) with respect to a Registration Statement that is not an Automatic Shelf Registration Statement, upon notification by the SEC that that such Registration Statement will not be reviewed or is no longer subject to further review and comment by the SEC, request, within three business days, acceleration of such Registration Statement such that it becomes effective at 5:00 p.m. New York Time on Form S-3 the date that effectiveness is requested (the "“Registration Effective Date”);
(vii) deliver to Purchaser, by 9:00 a.m. New York time on the day following the Registration Effective Date, without charge, an electronic copy of each prospectus or prospectuses (including each form of prospectus) and each amendment or supplement thereto, each of which prospectus shall satisfy the requirements of Section 10(a) of the Securities Act. The Company hereby consents to the use of such prospectus and each amendment or supplement thereto by Purchaser in connection with the offering and sale of the Registrable Securities covered by such prospectus and any amendment or supplement thereto;
(viii) advise Purchaser promptly:
(1) of any review initiated by the SEC with respect to the Registration Statement"), which ;
(2) of the effectiveness of the Registration Statement shall not or any post-effective amendments thereto;
(3) of any request by the SEC for amendments to the Registration Statement or amendments to the prospectus or for additional information relating thereto;
(4) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Registrable Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes; and
(5) of the existence or discovery of any fact or the happening of any event that makes (1) the Registration Statement contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein, therein or necessary to make the statements therein not misleading or (2) any related prospectus (including any documents incorporated by reference therein) contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances in under which they were made, not misleading, to enable the resale ; in each of the shares foregoing cases, the Company shall promptly file with the SEC an amended Registration Statement and prospectus, or a new Registration Statement, which shall not contain any such untrue statement or omission and, in the case of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and an amended Registration Statement or new Registration Statement, use all reasonable its best efforts to cause the same to become effective under the Securities Act as soon as practicable but in no event later than forty-five (45) days after such Registration Statement filing; and
(ix) use its best efforts to cause all Registrable Shares to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) the later of the third anniversary of the Transfer, plus, in listed on each case, a number of days equal to the number of dayssecurities exchange, if any, the Registration Statement is suspended or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition on which equity securities of the Registrable Securities in exchange for publicly traded stock Company are then listed.
(i.e., stock that has been registered b) In the event the Company elects to file a registration statement under the Securities Act for issuance pertaining to such Investor and is listed on a national securities exchange or Nasdaq) an underwritten public offering of another entity (Common Stock of the "Registration Period"). In the event that Form S-3 is unavailable for such registrationCompany, the Company shall use notify the Purchaser thereof at least ten (10) days prior to filing and will afford Purchaser the opportunity to include Registrable Shares therein. In such other event, the right of Purchaser to participate in such underwriting shall be conditioned upon Purchaser’s entry into an underwriting agreement in customary form as is available with the underwriter selected for such underwriting by the Company. If in the course of the offering, the underwriter determines in good faith that market factors require a registrationlimitation of the number of shares to be underwritten, the number of shares shall be allocated first to the Company, second to Purchaser and third to any other stockholders participating in such underwriting; provided that, in any event, Purchaser shall be entitled to include in such offering an amount of its Common Shares equal to no less than 25% of the total number of shares of Common Stock constituting such offering. For purposes of Purchaser’s rights under this Section 1.1(a)7.2(b) shall terminate on the earlier of the date on which Purchaser first holds Common Shares constituting less than 2.5% of the outstanding common stock of the Company or two (2) years after the Registration Effective Date.
(c) The Company shall bear all reasonable expenses in connection with the procedures in this Section 7.2 and the registration and underwriting of the Registrable Shares on such Registration Statement and the satisfaction of the blue sky laws of such states; provided, "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) however, that in excess no event will the Company be responsible for any underwriting discounts or commissions due in connection with the sale of sixty (60) days in the aggregate Registrable Shares in any twelve month period underwritten offering of time;Registrable Shares.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Illumina Inc), Securities Purchase Agreement (Solexa, Inc.)
Registration Procedures and Expenses. The Company hereby agrees that it shallTHE COMPANY SHALL:
(a) if requested within 10 days of the conversion of the Note pursuant to Section 2 thereof, commence the preparation of a registration statement on Form S-3 (and it qualifies under applicable SEC rulesthe "REGISTRATION STATEMENT") to undertake an S-3 registration enable the resale of the Common Stock by the Trust with regard Holder from time to time through the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A)Nasdaq Stock Market or in privately negotiated transactions; and, subject to receipt of necessary information from the Trust Holder, file the Registration Statement with the Securities and Exchange Commission ("SEC") as soon thereafter as practicable;
(b) use its best efforts, subject to receipt of necessary information from the EmployeesHolder, to cause the Registration Statement to become effective as soon as practicable;
(c) use its best efforts to prepare and file with the SEC as soon as practicable following such request a registration statement on Form S-3 (amendments and supplements to the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to and the Prospectus used in connection therewith as may be stated therein, or necessary to make keep the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared current and effective as promptly as possible after filing and to remain continuously effective until for a period not exceeding the earlier of (i) the later of the third second anniversary of the Transfer, plus, in each case, a number of days equal date on which this Note is converted pursuant to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace PeriodSection 2, (ii) the date on which the Holder may sell all Shares then held by the Holder without restriction by the volume limitations of Rule 144(e) of the Securities Act or (iii) such time as all Registrable Shares shares of the Common Stock have been sold pursuant to a registration statement, and to notify the Holder promptly upon the Registration Statement and each post-effective amendment thereto being declared effective by the SEC;
(d) furnish to the Holder such number of copies of the Registration Statement, Prospectuses (including supplemental prospectuses) and preliminary versions of the Prospectus filed with the SEC ("PRELIMINARY PROSPECTUSES") in conformity with the requirements of the Securities Act of 1933 and such other documents as the Holder may reasonably request, in order to facilitate the public sale or other disposition of all or any of the shares of the Common Stock by the Holder; provided, however, that unless waived by the Company in writing, the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Holder shall be subject to the Transfer receipt by the Company of reasonable assurances from the Holder that the Holder will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may immediately be sold during applicable in connection with any 90 day period use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in all states requiring blue sky clearance; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph (a) through (e) of this Section 1.1 (including reasonable fees and expenses of one counsel for Holder) and the registration of the Common Stock pursuant to the Registration Statement; and
(g) advise the Holder, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and it will promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued. With a view to making available to the Holder the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Holder to sell shares of the Common Stock to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Holder's shares of Common Stock may be resold pursuant to Rule 144 under the Securities Act, 144(k) or any other rule of similar effect or (iiiB) the closing of an acquisition such date as all of the Registrable Securities Holder's shares of Common Stock shall have been resold; (ii) file with the SEC in exchange for publicly traded stock (i.e., stock that has been registered a timely manner all reports and other documents required of the Company under the Securities Act for issuance and under the Exchange Act; and (iii) furnish to the Holder upon request, as long as the Holder owns any shares of Common Stock, (A) a written statement by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-KSB or Quarterly Report on Form 10-QSB, and (C) such Investor and is listed on other information as may be reasonably requested in order to avail the Holder of any rule or regulation of the SEC that permits the selling of any such shares of Common Stock without registration. It shall be a national securities exchange or Nasdaq) condition precedent to the obligations of another entity (the "Registration Period"). In Company to take any action pursuant to this Section 1.1 that the event that Form S-3 is unavailable for Holder shall furnish to the Company such registrationinformation regarding itself, the Company shares of Common Stock to be sold by the Holder, and the intended method of disposition of such securities as shall use such other form as is available for such a registration. For purposes be required to effect the registration of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;Common Stock.
Appears in 2 contracts
Sources: Convertible Note (Image Sensing Systems Inc), Convertible Note (Image Sensing Systems Inc)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) as soon as practicable, but in no event later than fifteen days following (i) the First Closing Date, in the case of the Purchased Shares and the Warrant Shares, and (ii) the Second Closing Date, in the case of the Option Shares (the “Filing Deadline”), prepare and file with the Commission a Registration Statement on Form S-3 (or, if requested permissible under the Rules and Regulations, a post-effective amendment to a then effective registration statement on such form) relating to the resale of (x) the Purchased Shares, the Warrant Shares and it qualifies under applicable SEC rulesthe Option Shares and (y) any shares of Common Stock issued or issuable directly or indirectly with respect to undertake an S-3 registration the securities referred to in clause (x) by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization (together, for purposes of this Section 7, the “Registrable Securities”) by the Trust with regard Purchaser from time to time on The Nasdaq Capital Market, or the Voting Securities subject to facilities of any other national securities exchange on which the Transfer Common Stock is then traded or in privately negotiated transactions;
(including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A)b) use its reasonable best efforts, subject to receipt of necessary information from the Trust and Purchasers whose securities are included therein, to cause the EmployeesCommission to declare the Registration Statement (or post-effective amendment, as applicable) effective within 30 days after the applicable Closing Date or, if the Commission reviews the Registration Statement, within 120 days after the applicable Closing Date (the “Effective Deadline”);
(c) promptly prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the Prospectus as soon as practicable following such request a registration statement on Form S-3 may be necessary to keep the Registration Statement effective until (the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make “Effectiveness Period”) the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier earliest of (i) two years after the later effective date of the third anniversary of the TransferRegistration Statement, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Period, (ii) such time as all the Registrable Shares subject to the Transfer may immediately be sold during any 90 day period Securities become eligible for resale by non-affiliates pursuant to Rule 144 144(k) under the Securities ActAct or any other rule of similar effect, or (iii) the closing of an acquisition such time as all of the Registrable Securities have been sold pursuant to the Registration Statement;
(d) so long as the Registration Statement is effective covering the resale of the Registrable Securities owned by the Purchaser, furnish to the Purchaser with respect to the Purchased Shares, the Warrant Shares and the Option Shares registered under the Registration Statement (and to each underwriter, if any, of such Purchased Shares, the Warrant Shares and Option Shares) such number of copies of prospectuses and such other documents as the Purchaser may reasonably request, in exchange order to facilitate the public sale or other disposition of all or any of the Registrable Securities by the Purchaser;
(e) file documents required of the Company for publicly traded stock normal Blue Sky clearance in states specified in writing by the Purchaser; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(i.e.f) bear all expenses in connection with the procedures in paragraphs (a) through (e) of this Section 7.1 and the registration of the Registrable Securities pursuant to the Registration Statement, stock that has been registered other than fees and expenses, if any, of counsel or other advisers to the Purchaser or the Other Purchasers (in each case except as otherwise provided herein) or underwriting discounts, brokerage fees and commissions incurred by the Purchaser or the Other Purchasers, if any, in connection with the offering pursuant to the Registration Statement;
(g) file a Form D with respect to offer and sale of the Purchased Shares and the Warrant Shares to the Purchaser as required under Regulation D under the Securities Act for issuance and to such Investor provide a copy thereof to the Purchaser promptly after filing; and
(h) file, not later than the next business day after the First Closing Date, a Current Report on Form 8-K with the Commission disclosing all material terms of the transactions contemplated hereby in accordance with the applicable Rules and is listed on a national securities exchange or Nasdaq) of another entity (Regulations. The Company understands that the "Registration Period"). In Purchaser disclaims being an underwriter, but the event that Form S-3 is unavailable for such registration, Purchaser being deemed an underwriter shall not relieve the Company shall use such other form of any obligations it has hereunder. A questionnaire related to the Registration Statement to be completed by the Purchaser is attached hereto as is available for such a registration. For purposes part of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;Appendix I.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Babyuniverse, Inc.), Stock Purchase Agreement (Babyuniverse, Inc.)
Registration Procedures and Expenses. The Company hereby agrees that it shallSoftbrands:
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A)shall, subject to receipt of necessary information from the Trust and the EmployeesHolders, prepare and file with the SEC Securities and Exchange Commission (“SEC”) as soon promptly as practicable following such request possible, and in any event prior to July 15, 2009 (the “Filing Date”), a registration statement Registration Statement on Form S-3 (the "“Registration Statement"”), which to enable the resale of any Shares, together with any securities issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing (collectively, the “Registrable Securities”) by the Holders on a continuous basis pursuant to Rule 415 of the Securities Act;
(b) shall use its best efforts, subject to receipt of necessary information from the Holders, to cause the Registration Statement to become effective as soon as practicable, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC any financial statements that are required to be filed prior to the effectiveness of such Registration Statement;
(c) shall use its best efforts to (i) prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement current and effective for a period (the “Effectiveness Period”) ending on the earlier of (A) the second anniversary of the Filing Date, or (B) the date on which the (x) Holders may sell Registrable Securities pursuant Rule 144(b)(ii) under the Securities Act or any successor rule (“Rule 144”) or (y) such time as all Registrable Securities have been sold pursuant to a registration statement or Rule 144; (ii) notify each Holder promptly upon the Registration Statement, and each post-effective amendment thereto, being declared effective by the SEC; (iii) respond as promptly as reasonably possible to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”) with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented;
(d) shall bear all expenses of SoftBrands and the Holders incident to the performance of or compliance with the registration rights contained in Section 4 of this Agreement by SoftBrands and the Holders, including without limitation (a) all registration and filing fees and expenses, including without limitation those related to filings with the SEC, any Trading Market and in connection with applicable state securities or Blue Sky laws, (b) printing expenses (including without limitation expenses of printing certificates for Registrable Securities and of printing prospectuses requested by the Holders), (c) messenger, telephone and delivery expenses, (d) fees and disbursements of counsel for SoftBrands, (e) fees and expenses of all other persons retained by SoftBrands in connection with the consummation of the transactions contemplated by this Agreement, (f) all listing fees to be paid by SoftBrands to the Trading Market; and (g) the fees and expenses of one legal counsel retained by the Holdersin connection the registration and sale of Registrable Securities pursuant hereto, but excluding any underwriting or brokerage fees or commissions;
(e) shall use its commercially reasonable efforts to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Holder’s Registrable Securities may be resold pursuant to Rule 144(b)(ii) or any other rule of similar effect or (B) such date as all of the Holder’s Registrable Securities shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of SoftBrands under the Securities Act and under the Exchange Act; and (iii) furnish to the Holder upon request, as long as the Holder owns any Registrable Securities, (A) a written statement by SoftBrands that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of SoftBrands’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Holder of any rule or regulation of the SEC that permits the selling of any such Registrable Securities without registration;
(f) shall not, and shall use its best efforts to ensure that no Affiliate of SoftBrands shall, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Registrable Securities in a manner that would require the registration under the Securities Act of the sale of the Registrable Securities to the Holders or that would be integrated with the offer or sale of the Securities for purposes of the rules and regulations of any Trading Market;
(g) shall notify the Holders of Registrable Securities to be sold as promptly as reasonably possible, and (if requested by any such person) of any of the following events: (i) the SEC notifies SoftBrands whether there will be a “review” of any Registration Statement; (ii) the SEC comments in writing on any Registration Statement (in which case SoftBrands shall deliver to each Holder a copy of such comments and of all written responses thereto); (iii) any Registration Statement or any post-effective amendment is declared effective; (iv) the SEC or any other Federal or state governmental authority requests any amendment or supplement to any Registration Statement or Prospectus or requests additional information related thereto; (v) the SEC issues any stop order suspending the effectiveness of any Registration Statement or initiates any proceedings for that purpose; (vi) SoftBrands receives notice of any suspension of the qualification or exemption from qualification of any Registrable Securities for sale in any jurisdiction, or the initiation or threat of any proceeding for such purpose; or (vii) the financial statements included in any Registration Statement become ineligible for inclusion therein or any statement made in any Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference is untrue in any material respect or any revision to a Registration Statement, Prospectus or other document is required 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 the light of the circumstances under which they were made, not misleading;
(h) shall furnish to each Holder, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules promptly after the filing of such documents with the SEC, and to the extent requested by such person all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including those previously furnished or incorporated by reference);
(i) shall promptly deliver to each Holder, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such persons may reasonably request. Subject to the provisions of this Agreement, including provisions related to any Suspension (as hereafter defined), SoftBrands hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto;
(j) shall (i) in the time and manner required by each Trading Market, prepare and file with such Trading Market an additional shares listing application covering all of the Registrable Securities; (ii) take all reasonable steps necessary to cause such Registrable Securities to be approved for listing on each Trading Market as soon as possible thereafter; (iii) provide to the Holders evidence of such listing; and (iv) maintain the listing of such Registrable Securities on each such Trading Market or another Eligible Market;
(k) shall, prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and respective Holder Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period; provided, however, that SoftBrands shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(l) shall cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by this Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holders may request;
(m) shall, upon the occurrence of any event described in Section 4.1(g)(vii), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statement statements therein, in the light of the circumstances in under which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer ; and
(the "Registrable Shares"n) shall cooperate with any due diligence investigation undertaken by the Trust from time Holders in connection with the sale of Registrable Securities, including, without limitation, by making available any documents and information; provided that SoftBrands will not deliver or make available to time on the Nasdaq and use all reasonable efforts any Holder material, nonpublic information unless such Holder specifically requests in advance to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) the later of the third anniversary of the Transferreceive material, plus, nonpublic information in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;writing.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested (as soon as practicable, prepare and it qualifies under applicable file with the SEC rules) the Registration Statement on Form S-3 relating to undertake an S-3 registration the resale of the Registrable Securities by the Trust with regard Purchasers from time to time through the NASD OTC Bulletin Board, the automated quotation system of the NASDAQ National Market or the NASDAQ SmallCap Market or the facilities of any national securities exchange on which the Company's Common Stock is then traded or in privately-negotiated transactions, in an amount equal to the Voting Securities subject number of Shares issued to Purchasers on the Closing Date plus the number of Shares Common Stock necessary to permit in full the exercise of the Warrants, plus to the Transfer extent allowable under the 1933 Act, such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities;
(including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A)b) use its reasonable efforts, subject to receipt of necessary information from the Trust and Purchasers, to cause the Employees, SEC to notify the Company of the SEC's willingness to declare the Registration Statement effective within 60 days after the Registration Statement is filed by the Company;
(c) prepare and file with the SEC as soon as practicable following such request a registration statement on Form S-3 (amendments and supplements to the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to and the prospectus used in connection therewith as may be stated therein, or necessary to make keep the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) twenty-four months after the later effective date of the third anniversary Registration Statement or (ii) the date on which the Registrable Securities may be resold by the Purchasers without registration by reason of Rule 144(k) under the Securities Act or any other rule of similar effect;
(d) permit counsel designated by the Placement Agent to review each Registration Statement and all amendments and supplements thereto no fewer than five (5) days prior to their filing with the SEC and not file any document to which such counsel reasonably objects;
(e) furnish to the Placement Agent and its legal counsel promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of any Registration Statement and any amendment thereto, each preliminary prospectus and prospectus and each amendment or supplement thereto, and each letter written by or on behalf of the TransferCompany to the SEC or the staff of the SEC, plusand each item of correspondence from the SEC or the staff of the SEC, in each case, a number case relating to such Registration Statement (other than any portion of days equal any thereof which contains information for which the Company has sought confidential treatment);
(f) furnish to each Purchaser with respect to the number of daysRegistrable Securities registered under the Registration Statement, to the Placement Agent, and to each underwriter, if any, for the Registration Statement is suspended resale of such Registrable Securities, such reasonable number of copies of prospectuses in order to facilitate the public sale or not effective beyond the Grace Period, (ii) such time as other disposition of all Registrable Shares subject to the Transfer may immediately be sold during or any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e.by the Purchaser; provided, stock however, that has been registered under the obligation of the Company to deliver copies of prospectuses to the Purchaser shall be subject to the receipt by the Company of reasonable assurances from the Purchaser that the Purchaser will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such prospectuses;
(g) file documents required of the Company for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (normal blue sky clearance in states specified in writing by the "Registration Period"). In the event Purchaser; provided, however, that Form S-3 is unavailable for such registration, the Company shall use such other form as not be required to qualify to do business or consent to service of process in any jurisdiction in which it is available for such a registration. For purposes not now so qualified or has not so consented; and
(h) bear all expenses in connection with the procedures in paragraphs (a) through (h) of this Section 1.1(a)6.1 and the registration of the Registrable Securities pursuant to the Registration Statement, "Grace Period" shall mean a suspension under Section 1.2(b) other than fees and 1.2(c) in excess expenses, if any, of sixty (60) days in counsel or other advisers to the aggregate in any twelve month period of time;Purchaser or the Other Purchasers or underwriting discounts, brokerage fees and commissions incurred by the Purchasers.
Appears in 1 contract
Sources: Purchase Agreement (Kupper Parker Communications Inc)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and Investors reasonably requested by the EmployeesCompany, prepare and file with the SEC as soon as practicable following such request SEC, within ten (10) business days after the Closing Date, a registration statement on Form S-3 (the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, ) to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") Shares by the Trust Investors from time to time on through the automated quotation system of the Nasdaq Stock Market or in privately-negotiated transactions, and provide the Investor at least two (2) business days to review and provide comments to the Registration Statement before filing with the SEC;
(b) use all reasonable efforts its best efforts, subject to receipt of necessary information from the Investor reasonably requested by the Company, to cause such the Registration Statement to be become effective as soon as practicable, but in no event later than sixty (60) days after the Registration Statement is filed by the Company. If the Registration Statement has not been declared effective by the SEC on or before the date that is 90 days after the Closing Date (the "Required Effective Date"), the Company shall, on the 91st day and each 30th day thereafter, make a payment to the Investor as promptly as possible partial compensation for such delay (the "Late Registration Payments") equal to 1% of the purchase price paid for the Shares purchased by the Investor and not previously sold by the Investor (but in no event to exceed 8% in the aggregate) until the Registration Statement is declared effective by the SEC. The Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid to the Investor by wire transfer or check within five business days after filing and to remain continuously effective until the earlier of (i) the later end of each 30 day period following the Required Effective Date or (ii) the effective date of the third Registration Statement;
(c) use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to each Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace PeriodClosing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act or (iii) such time as all Registrable Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement, and to notify each Investor promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective by the SEC;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses (including supplemental prospectuses) and preliminary versions of the Prospectus filed with the SEC ("Preliminary Prospectuses") in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that unless waived by the Company in writing, the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the Transfer receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may immediately be sold during applicable in connection with any 90 day period use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph (a) through (e) of this Section 6.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors, promptly after it receives notice or obtains knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and it will promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued. With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144 under the Securities Act, 144(k) or any other rule of similar effect or (iiiB) the closing of an acquisition such date as all of the Registrable Securities Investor's Shares shall have been resold; (ii) file with the SEC in exchange for publicly traded stock (i.e., stock that has been registered a timely manner all reports and other documents required of the Company under the Securities Act for issuance and under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor and is listed on of any rule or regulation of the SEC that permits the selling of any such Shares without registration. It shall be a national securities exchange or Nasdaq) condition precedent to the obligations of another entity (the "Registration Period"). In Company to take any action pursuant to this Section 6.1 that the event that Form S-3 is unavailable for Investor shall furnish to the Company such registrationinformation regarding itself, the Shares to be sold by Investor, and the intended method of disposition of such securities as shall be reasonably required to effect the registration of the Shares. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall use such other form as is available for such a registration. For purposes not relieve the Company of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;obligations it has hereunder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Endocardial Solutions Inc)
Registration Procedures and Expenses. The Company hereby agrees that it Parent shall:
(a) if requested use its best efforts to file a Registration Statement with the SEC (i) within thirty (30) days following the Closing to register the Registrable Shares issuable upon the Effective Time, and it qualifies under applicable SEC rules(ii) to undertake an the extent that Parent issues shares of Parent Common Stock pursuant to Section 1.8(h)(ii), within thirty (30) days following the date of the stockholder approval described in Section 1.8(h)(ii) (the "Approval Date"), to register the Registrable Shares issuable pursuant to Section 1.8(h)(ii), in each case on Form S-3 registration under the Securities Act or on such other form that is appropriate to register all of the Registrable Shares for resale from time to time by the Trust with regard to the Voting Securities subject to the Transfer Company Preferred Holders;
(including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A)b) use its best efforts, subject to receipt of necessary information from the Trust and holders of Series A-1 Preferred, to cause each such Registration Statement to become effective as promptly after filing as practicable but in no event later than the Employeesdate which is (i) in the event that such Registration Statement is not subject to a full review by the SEC, 60 days after the Closing Date or Approval Date, as applicable, or (ii) in the event that such Registration Statement is subject to a full review by the SEC, 120 days after the Closing Date or Approval Date, as applicable;
(c) prepare and file with the SEC as soon as practicable following such request a registration statement on Form S-3 (the "Registration Statement"), which amendments and supplements to each such Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to and the prospectus used in connection therewith as may be stated therein, or necessary to make keep such Registration Statement effective until termination of such obligation as provided in Section 5.3 below, subject to Parent's right to suspend pursuant to the statement thereinStockholders' Agreement;
(d) furnish to each Company Preferred Holder such number of copies of prospectuses in conformity with the requirements of the Securities Act and such other documents as the Company Preferred Holders may reasonably request, in light order to facilitate the public sale or other disposition of all or any of the circumstances in which they were made, not misleading, to enable Registrable Shares by the Company Preferred Holders;
(e) file such documents as may be required of the Parent for normal securities law clearance for the resale of the shares Registrable Shares in such states of the United States as may be reasonably requested by each Company Common Stock subject Preferred Holder; provided, however, that Parent shall not be required in connection with this paragraph (e) to qualify as a foreign corporation or execute a general consent to service of process in any jurisdiction;
(f) permit the Transfer Company Stockholders' Agent (the "Registrable Shares"and its legal counsel) by the Trust from time a reasonable opportunity to time on the Nasdaq review and use all reasonable efforts to cause comment upon each such Registration Statement prior to be the time each it is declared effective as promptly as possible after filing and to remain continuously effective until the earlier of effective;
(g) advise each Company Preferred Holder promptly:
(i) of any request by the later SEC for amendments to each such Registration Statement or amendments to the prospectus or for additional information relating thereto;
(ii) of the third anniversary issuance by the SEC of any stop order suspending the effectiveness of each such Registration Statement under the Securities Act or of the Transfersuspension by any state securities commission of the qualification of the Registrable Shares for offering or sale in any jurisdiction, plus, or the initiation of any proceeding for any of the preceding purposes; and
(iii) of the existence of any fact and the happening of any event that makes any statement of a material fact made in each casesuch Registration Statement, a number the prospectus and amendment or supplement thereto, or any document incorporated by reference therein, untrue, or that requires the making of days equal any additions to or changes in the Registration Statement(s) or the prospectus in order to make the statements therein not misleading;
(h) in connection with the filing of any document that is to be incorporated by reference into each such Registration Statement or the prospectus (after the initial filing of such Registration Statement):
(i) use its best efforts to provide copies of such document to the number Company Stockholders' Agent concurrently with such filing;
(ii) make a Parent representative available for discussion of dayssuch document;
(i) cause all Registrable Shares to be listed on each securities exchange, if any, on which equity securities of Parent are then listed; and
(j) bear all expenses in connection with the Registration Statement is suspended or not effective beyond procedures in paragraphs (a) through (h) of this Section 5.2 and the Grace Period, (ii) such time as all Registrable Shares subject to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition registration of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under Shares on each such Registration Statement and the Securities Act for issuance to satisfaction of the blue sky laws of such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;states.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust Holders that is both customary and the Employeesnecessary, prepare and file with the SEC SEC, as soon as practicable following practicable, but in no event later than 30 days after the Closing Date (the date of such request filing with the SEC, the "Filing Date"), a registration statement on Form S-3 (the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, ) to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") Securities by the Trust Holders from time to time through the automated quotation system of the Nasdaq Stock Market or in privately-negotiated transactions; provided, however, that not less than two (2) days prior to the filing of the Registration Statement, the Company shall make available to the Holders a copy of those portions of the Registration Statement proposed to be filed relating to information provided to the Company by the Holders and the Company agrees to consider appropriate comments provided by such Holders with respect to the Registration Statement for inclusion in the Registration Statement;
(b) use its reasonable efforts, subject to receipt of necessary information from the Holders, to cause the Registration Statement to become effective as soon as practicable; but in no event later than one hundred twenty (120) days after the Filing Date (the "Effective Date"); provided, however, that if the Registration Statement has not been declared effective by the SEC on or before the Effective Date, then the Company shall on the first day after the Effective Date, pay the Holders an amount equal to one-half percent (.5%) of the total fair market value of the Shares (which shall be based on the closing price of the Company's Common Stock as reported on Nasdaq on the business day immediately preceding the Closing Date of the Transaction (the "Fair Market Value") received by the Holders pursuant to the Purchase Agreement, and one-quarter percent (.25%) of the total Fair Market Value of the Shares received by the Holders, each thirtieth day thereafter, up to a maximum of one and one-quarter percent (1.25%) of such total Fair Market Value until the Registration Statement is declared effective by the SEC.
(c) use all its reasonable efforts to cause prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith as may be necessary to be declared keep the Registration Statement current and effective as promptly as possible after filing and for a period not exceeding, with respect to remain continuously effective until each Holder's Registrable Securities, the earlier of (i) the later of the third second anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace PeriodClosing Date, (ii) the date on which such Holder may sell all Registrable Securities then held by such Holder without restriction by the volume limitations of Rule 144(e) of the Securities Act or (iii) such time as all Registrable Shares subject Securities have been sold pursuant to a registration statement;
(d) furnish to the Transfer may immediately be sold during any 90 day period pursuant Holder with respect to Rule 144 the Registrable Securities registered under the Registration Statement such number of copies of the Registration Statement, prospectuses and preliminary prospectuses in conformity with the requirements of the Securities ActAct and such other documents as the Holder may reasonably request, in order to facilitate the public sale or (iii) the closing other disposition of an acquisition all or any of the Registrable Securities by the Holder, provided, however, that the obligation of the Company to deliver copies of prospectuses or preliminary prospectuses to the Holder shall be subject to the receipt by the Company of reasonable assurances from the Holder that the Holder will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in exchange connection with any use of such prospectuses or preliminary prospectuses;
(e) file documents required of the Company for publicly traded stock normal blue sky clearance in states specified in writing by the Holder, provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(i.e.f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 2.1 and the registration of the Registrable Securities pursuant to the Registration Statement;
(g) advise the Holders, stock promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that has purpose; and it will promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued; and
(h) with a view to making available to the Holder the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Holder to sell Registrable Securities to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Registrable Securities may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the Holder's Registrable Securities shall have been registered resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act for issuance and under the Exchange Act; (iii) furnish to the Holder upon request, as long as the Holder owns any Registrable Securities, (A) a written statement by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such Investor other information as may be reasonably requested in order to avail the Holder of any rule or regulation of the SEC that permits the selling of any such Registrable Securities without registration; and (iv) subject to the conditions set forth in this Agreement, and provided the conditions of Rule 144(k) are satisfied in all respects, including without limitation, that the Holder is listed not an Affiliate of the Company, as such term is defined in Rule 144, use commercially reasonable efforts to cause the removal of any restrictive legends on the Registrable Securities necessary to enable the Holder to sell the Registrable Securities under Rule 144(k).
(i) It shall be a national securities exchange or Nasdaq) condition precedent to the obligations of another entity (the "Registration Period"). In Company to take any action pursuant to this Section 2.1 that the event that Form S-3 is unavailable for Holder shall furnish to the Company, pursuant to the written request by the Company, such registrationinformation regarding itself, the Registrable Securities to be sold by Holder, and the intended method of disposition of such securities as shall be required to effect the registration of the Registrable Securities. The Company understands that the Holder disclaims being an underwriter, but the Holder being deemed an underwriter by the SEC shall use such other form as is available for such a registration. For purposes not relieve the Company of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;obligations it has hereunder.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested Subject to receipt of necessary information in writing from the Purchasers, as soon as reasonably practicable, but in no event later than fifteen (15) business days following the Closing Date (the “Filing Date”), prepare and it qualifies under applicable SEC rules) file with the Commission a Registration Statement on Form S-3 relating to undertake an S-3 registration the sale of the Shares by the Trust with regard Purchaser and the Other Purchasers from time to time on the Voting Securities Nasdaq or the facilities of any national securities exchange on which the Common Stock is then traded or in privately negotiated transactions (the “Registration Statement”). If Form S-3 is not available at that time, the Company will file a registration statement or such form as is then available to effect a registration of the Shares, subject to the Transfer (including, the Employee Shares should the Employees execute consent of a joinder agreeing to be bound by the terms and provisions majority of the Exhibit A)Purchasers, which consent shall not be unreasonably withheld;
(b) use its commercially reasonable efforts, subject to receipt of necessary information from the Trust and Purchasers, to cause the EmployeesCommission to declare the Registration Statement effective within ninety (90) calendar days after the Closing Date (the “Required Effective Date”). However, so long as the Company filed the Registration Statement by the Filing Date, if the Registration Statement receives Commission review, then the Required Effective Date will be the one hundred twentieth (120th) calendar day after the Closing Date. The Company’s reasonable commercial efforts will include, but not be limited to, promptly responding to all comments received from the staff of the Commission. If the Company receives notification from the Commission that the Registration Statement will receive no action or review from the Commission, then the Company will, subject to its rights under this Agreement, use its commercially reasonable efforts to cause the Registration Statement to become effective within five (5) business days after such Commission notification;
(c) use its reasonable best efforts to promptly prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the prospectus used in connection therewith as soon may be necessary to keep the Registration Statement effective until the earliest of (i) two years after the Closing Date, (ii) the date on which the Purchasers may sell all of the Shares then held by the Purchasers, without registration, pursuant to Rule 144(k) of the Securities Act or (iii) such time as practicable following such request all Shares purchased by all Purchasers in the Offering have been sold pursuant to a registration statement on Form S-3 (Registration Statement or Rule 144 of the "Securities Act. Thereafter, the Company shall be entitled to withdraw the Registration Statement and the Purchasers shall have no further right to offer or sell any of the Shares pursuant to the Registration Statement");
(d) furnish to the Purchaser with respect to the Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares) such number of copies of prospectuses and such other documents as the Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Purchaser;
(e) file documents required of the Company for normal Blue Sky clearance in states specified in writing by the Purchaser and reasonably acceptable to the Company; provided, however, that the Company shall not be required to (i) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 7.1; (ii) file a general consent to service of process in any such jurisdiction; (iii) subject itself to taxation in any such jurisdiction; (iv) provide any undertakings that cause material expense or burden to the Company; or (v) make any change to its organizational documents, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders; and
(f) bear all expenses in connection with the procedures in paragraphs (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement Statement, other than fees and expenses, if any, of counsel or other advisers to the Purchaser or the Other Purchasers or underwriting discounts, brokerage fees and commissions incurred by the Purchaser or the Other Purchasers, if any. Notwithstanding the foregoing, it shall be a condition precedent to the obligations of the Company to take any action pursuant to paragraphs (a) through (f) of this Section 7.1, that the Purchaser shall furnish to the Company such information regarding itself, the Shares to be sold by the Purchaser, and the intended method of disposition of such Shares as shall be required to effect the registration of the Shares, all of which information shall be furnished to the Company in writing specifically for use in the Registration Statement. The Company understands that the Purchaser disclaims being an underwriter, but the Purchaser being deemed an underwriter shall not contain relieve the Company of any untrue statement of material fact or omit to state a material fact required to be stated thereinobligations it has hereunder, or necessary to make provided, however, that if the statement thereinCompany receives notification from the Commission that the Purchaser is deemed an underwriter, in light of then the circumstances period in which they were made, not misleading, the Company is obligated to enable the resale of the shares of Company Common Stock subject submit an acceleration request to the Transfer (the "Registrable Shares") by the Trust from time Commission shall be extended to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) the later ninetieth (90th) day after such Commission notification, or (ii) one hundred twenty (120) days after the initial filing of the third anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond with the Grace PeriodCommission. Notwithstanding the foregoing, (ii) such time as all Registrable Shares subject to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock parties understand and agree that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use not be obligated to retain an underwriter with respect to the offer and sale of Shares pursuant to the Registration Statement. The Company shall promptly notify the Purchaser of the effectiveness of the Registration Statement, and any post-effective amendments thereto, as well as of the receipt by the Company of any stop orders of the Commission with respect to the Registration Statement and the lifting of any such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;order.
Appears in 1 contract
Registration Procedures and Expenses. (i) The Company hereby agrees that it shall:
(aA) as soon as practicable, but in no event later than thirty (30) days following the Closing Date (the “Filing Deadline”), prepare and file with the Commission a registration statement on Form F-3 (or, if requested (the Company is not then eligible to register the Registrable Securities for resale on Form F-3, on another appropriate form in accordance with the Securities Act and it qualifies under applicable SEC rules) the Exchange Act), to undertake an S-3 registration enable the resale of the Registrable Securities by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing Buyer in an offering to be bound by made on a continuous basis pursuant to Rule 415 under the terms Securities Act (such registration statement being referred to herein as the “Initial Registration Statement” and provisions of each registration statement required to be filed under this Section 8 being referred to herein as a “Registration Statement”); provided, however, that the Exhibit A)Buyer shall not be named as an “underwriter” in the Registration Statement without the Buyer’s prior written consent;
(B) use its reasonable best efforts, subject to receipt of necessary information from the Trust Buyer, to cause the SEC to declare the Initial Registration Statement effective as promptly as practicable, but in any event no later than the earlier of (I) the fifth (5th) day after the Company receives notice from the SEC that such Registration Statement will not become subject to review, or (II) the ninetieth (90th) day after the filing thereof or if later the one hundred and twentieth (120th) day after the EmployeesClosing Date (as applicable, the “Effective Deadline”);
(C) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to a Registration Statement in compliance with applicable laws, any prospectus used in connection therewith (each, a “Prospectus”) and any document incorporated by reference therein as soon may be necessary to keep such Registration Statement current, effective and free from any material misstatement or omission to state a material fact until the earliest of (I) twelve months after the effective date of the Registration Statement and (II) such time as practicable following such request a registration statement on Form S-3 all Offered ADSs and all Warrant ADSs issuable pursuant to the Warrant and, in each case, covered by the Registration Statement, may be sold without volume limitations pursuant to Rule 144 (the "“Effectiveness Period”);
(D) furnish to the Buyer with respect to the Registrable Securities registered under the Registration Statement (and to each underwriter, if any, of such Registrable Securities) such number of copies of the Registration Statement"), Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Buyer (or underwriter, as applicable) may reasonably request in order to facilitate the public sale or other disposition of all or any of the Registrable Securities;
(E) file documents required of the Company for normal blue sky clearance in states specified in writing by the Buyer and use its commercially reasonable efforts to maintain such blue sky qualifications during the Effectiveness Period; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented or subject the Company to any material tax (excluding, for the avoidance of doubt, any filing fees required in connection with such filing) in any such jurisdiction where it is not then so subject;
(F) immediately notify the Buyer, at any time prior to the end of the Effectiveness Period, upon discovery that, or upon the happening of any event as a result of which, the Registration Statement includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to such holder an amendment of such Registration Statement as may be necessary so that such Registration Statement shall not contain any include an untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statement therein, statements therein not misleading in light of the circumstances then existing;
(G) advise the Buyer, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of a Registration Statement or of the initiation or threat of any proceeding for that purpose; and, subject to Section 8(a)(iii), promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued;
(H) bear all expenses in connection with the procedures in clauses (A) through (G) of this Section 8(a)(i), the procedures in Section 8(a)(iv) and the registration of the Registrable Securities pursuant to the Registration Statement, including any expenses incurred with respect to the duties of the Depositary pursuant to this Agreement (other than underwriting discounts or commissions, brokers’ fees and similar selling expenses and any other fees or expenses incurred by the Buyer, including attorneys’ fees);
(I) promptly following the date on which any Registration Statement is declared effective by the SEC, file with the SEC in accordance with Rule 424 under the Securities Act, if required thereunder, the final prospectus to be used in connection with sales pursuant to such Registration Statement; and
(J) at least two (2) Business Days prior to the filing of each Registration Statement, provide a “Plan of Distribution” and “Selling Stockholders” section of such Registration Statement to the Buyer for the Buyer’s review and comment which, at a minimum, states that the selling stockholders may transfer the shares of common stock in various circumstances, including circumstances in which they were madethe transferees, pledgees or other successors in interest may be the selling beneficial owners for purposes of the Prospectus, and make all changes and modifications thereto reasonably requested by the Buyer.
(ii) Notwithstanding anything to the contrary herein, from the date hereof until the effective date of one or more Registration Statements covering all of the Registrable Securities, the Company shall not, without the prior written consent of the Buyer, prepare and file with the SEC a registration statement (or prospectus filed pursuant to an effective “shelf” registration statement) relating to an offering for its own account or the account of others under the Securities Act of any of its equity securities; provided however that, subject to the restrictions contained herein, the Registration Statement covering the Registrable Securities may be a “universal” shelf registration statement covering additional securities of the Company and the Registration Statement may also register for resale by the holders thereof Ordinary Shares representing up to 263,158 ADSs and up to 105,263 Warrant ADSs in connection with the sale of up to 263,158 additional Units to one or more additional purchasers (the “Additional Investors”) within forty-five days of the date hereof.
(iii) Notwithstanding anything to the contrary herein, if the SEC takes the position that the offering of some or all of the Registrable Securities in the Initial Registration Statement (and/or any other securities registered therein) is not misleadingeligible to be made on a delayed or continuous basis under the provisions of Rule 415 as a result of a characterization by the SEC of the transaction described by the Initial Registration Statement as a primary offering by the Company, the Company shall use its reasonable best efforts to enable persuade the SEC that the offering contemplated by the Initial Registration Statement is a valid secondary offering and not an offering “by or on behalf of the issuer” as defined in Rule 415. In the event that, despite the Company’s reasonable best efforts and compliance with the terms of this Section 8(a)(iii), the SEC refuses to alter its position, the Company shall remove from the Initial Registration Statement such portion of the Registrable Securities and/or other securities registered therein (the “Cut Back ADSs”) as the SEC may require to assure the Company’s compliance with the requirements of Rule 415; provided, however, that the Company shall have no liability to the Buyer pursuant to Section 8(c) or otherwise as a result of the failure to register any Registrable Securities as a result of the SEC’s application of Rule 415 despite the Company’s reasonable best efforts to persuade the SEC that the offering contemplated by the Registration Statement is a valid secondary offering and not an offering “by or on behalf of the issuer” as defined in Rule 415. For the purpose of determining the Cut Back ADSs, first all securities being registered on behalf of Persons other than the Buyer (if any), including shares registered on behalf of any Additional Investors, shall be excluded until all securities being registered on behalf of Persons other than the Buyer have been excluded), second (if necessary) the Warrant ADSs offered on behalf of the Buyer shall be excluded until all such Warrant ADSs have been excluded and third (if necessary) the Offered ADSs offered on behalf of the Buyer shall be excluded until all such Offered ADSs have been excluded. As soon as practicable following such intervening period of time as shall be required by the SEC or SEC guidance prior to the filing thereof, the Company shall file one or more additional registration statements covering the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") as many Cut Back ADSs allowed by the Trust from time SEC or SEC guidance to time on be so registered while maintaining the Nasdaq and Company’s compliance with Rule 415 (each, an “Additional Registration Statement”). The Company shall use all its commercially reasonable efforts to file each Additional Registration Statement on or prior to the twentieth (20th) day after such day that represents the first opportunity that the SEC allows the Additional Registration Statement to be filed without the offering of the shares registered thereunder being deemed a primary offering (the “Additional Registration Statement Filing Eligibility Day”) and cause such each Additional Registration Statement to be declared effective no later than, as promptly as possible applicable (a) five (5) days after the Company receives notice from the SEC that the Additional Registration Statement will not become subject to review or (b) if the Additional Registration Statement becomes subject to review by the SEC, ninety (90) days after the filing and thereof. With regard to remain continuously effective until the earlier of (i) the later any such Additional Registration Statement, all of the third anniversary provisions of this Section 8(a)(iii) shall again be applicable to the Cut Back Shares. The Company shall give the Buyer prompt notice of the Transfer, plus, in amount of Shares excluded from each case, a number of days equal to the number of days, if any, the Additional Registration Statement. Each Registration Statement shall be on Form F-3 (except if the Company is suspended or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject then eligible to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition of register for resale the Registrable Securities on Form F-3, in exchange for publicly traded stock (i.e., stock that has been registered under which case such registration shall be on another appropriate form in accordance with the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaqthe Exchange Act).
(iv) Within two (2) Business Days of another entity (the "effective date of any Registration Period"). In the event that Form S-3 is unavailable for such registrationStatement, the Company shall use give notice to the Buyer of such other form as is available for such effectiveness and cause its counsel to issue an appropriate opinion or opinions to the Depositary, substantially to the effect that the shares are subject to an effective registration statement and can be reissued free of restrictive legend upon notice of a registration. For purposes of this Section 1.1(a)sale by Buyer and confirmation by Buyer that it has complied with the prospectus delivery requirements, "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) provided that the Company has not advised the Depositary orally or in excess of sixty (60) days in writing that the aggregate in any twelve month period of time;opinion has been withdrawn.
Appears in 1 contract
Sources: Securities Purchase Agreement (RedHill Biopharma Ltd.)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested file a Registration Statement (the “Mandatory Registration Statement”) with the Commission by no later than the later of (i) 30 days from the Closing Date and it qualifies under applicable SEC rules(ii) the date of filing of the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022 (the “Filing Date”) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions register all of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, prepare and file with the SEC as soon as practicable following such request a registration statement Registrable Shares on Form S-3 under the Securities Act (providing for shelf registration of such Registrable Shares under Commission Rule 415). In the "Registration Statement"), which Registration Statement shall event that Form S-3 is not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make available for the statement therein, in light registration of the circumstances in which they were madeRegistrable Shares, not misleading, to enable the Company shall register the resale of the shares of Company Common Stock subject Registrable Shares on such other form as is available to the Transfer Company;
(the "Registrable Shares"b) by the Trust from time to time on the Nasdaq and use all its commercially reasonable efforts to cause such Mandatory Registration Statement to be declared effective as soon as practicable and in any event on or before the Effectiveness Deadline, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the Commission any financial statements or other information that is required to be filed prior to the effectiveness of such Mandatory Registration Statement;
(c) not less than two (2) Trading Days prior to the filing of a Registration Statement or any related prospectus or any amendment or supplement thereto, furnish via email to those Purchasers who have supplied the Company with email addresses copies of all such documents proposed to be filed, which documents (other than any document that is incorporated or deemed to be incorporated by reference therein) will be subject to the review of such Purchasers. The Company shall reflect in each such document when so filed with the Commission such comments regarding the Purchasers and the plan of distribution as the Purchasers may reasonably and promptly propose no later than two (2) Trading Days after the Purchasers have been so furnished with copies of such documents as aforesaid;
(d) use its commercially reasonable efforts to cause any such additional Registration Statement to be declared effective as promptly as possible after practicable following the additional Filing Date, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the Commission any financial statements or other information that is required to be filed prior to the effectiveness of any such Additional Registration Statement;
(e) promptly prepare and file with the Commission such amendments and supplements to remain such Registration Statements and the prospectus used in connection therewith as may be necessary to keep such Registration Statements continuously effective and free from any material misstatement or omission to state a material fact therein until termination of such obligation as provided in Section 4.6 below, subject to the earlier Company’s right to suspend pursuant to Section 4.5;
(f) furnish to the Purchasers such number of copies of prospectuses in conformity with the requirements of the Securities Act and such other documents as the Purchasers may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Shares by the Purchasers;
(g) file such documents as may be required of the Company for normal securities law clearance for the resale of the Registrable Shares in such states of the United States as may be reasonably requested by the Purchasers and use its commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain effectiveness of the Registration Statements; provided, however, that the Company shall not be required in 21. connection with this Section 4.2(g) to qualify as a foreign corporation or execute a general consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(h) upon notification by the Commission that that the Registration Statement has been declared effective by the Commission, the Company shall file the final prospectus under Rule 424 of the Securities Act (“Rule 424”) within the applicable time period prescribed by Rule 424;
(i) advise the later Purchasers promptly (and in any event within two (2) Trading Days thereof):
(i) of the third anniversary effectiveness of the Transfer, plus, in each case, a number Registration Statement or any post-effective amendments thereto;
(ii) of days equal any request by the Commission for amendments to the number Registration Statement or amendments to the prospectus or for additional information relating thereto;
(iii) of daysthe issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Registrable Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes; and
(iv) of the existence of any fact and the happening of any event that makes any statement of a material fact made in the Registration Statement, the prospectus and amendment or supplement thereto, or any document incorporated by reference therein, untrue, or that requires the making of any additions to or changes in the Registration Statement or the prospectus in order to make the statements therein not misleading;
(j) cause all Registrable Shares to be listed on each securities exchange, if any, on which equity securities by the Registration Statement is suspended or not effective beyond Company are then listed; and
(k) bear all expenses in connection with the Grace Period, procedures in paragraphs (iia) such time as all Registrable Shares subject to through (k) of this Section 4.2 and the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition registration of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under Shares on such Registration Statement and the Securities Act for issuance to satisfaction of the blue sky laws of such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;states.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested within 30 days following the Closing Date (the “Filing Date”), prepare and it qualifies under file with the Commission the Registration Statement on the applicable SEC rulesform relating to the sale of the Shares and the Warrant Shares (together, the “Registrable Securities”) to undertake an S-3 registration by the Trust with regard Purchaser and the Other Purchasers from time to time on the Voting Securities subject to the Transfer (includingNasdaq National Market, the Employee Shares should Nasdaq Small Cap Market, or the Employees execute a joinder agreeing to be bound by facilities of any national securities exchange on which the terms and provisions of the Exhibit A)Common Stock is then traded or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Trust Purchasers, to cause the Commission to declare the Registration Statement effective within 60 days after the Closing Date (such date, the “Required Effective Date”); provided, however, that if the Company filed the Registration Statement by the Filing Date and the EmployeesRegistration Statement receives Commission review, then the Required Effective Date will be the ninetieth (90th) calendar day after the Closing Date;
(c) if the Registration Statement was not filed on Form S-3, use its reasonable best efforts, subject to receipt of necessary information from the Purchasers, to prepare and file with the SEC Commission, as soon as reasonably practicable following such request a registration statement after the Company becomes eligible to register the Registrable Securities for resale on Form S-3 S-3, an amendment to the Registration Statement to convert the Registration Statement to Form S-3;
(d) use its reasonable best efforts to promptly prepare and file with the "Commission such amendments and supplements to the Registration Statement and the prospectus used in connection therewith as may be necessary to keep the Registration Statement effective until the earliest of (i) two years after the effective date of the Registration Statement"), which (ii) such time as the Registrable Securities become eligible for resale pursuant to Rule 144(k) under the Securities Act of 1933 or any other rule of similar effect, or (iii) such time as all Registrable Securities have been sold by the Purchasers;
(e) during such period as the Company shall be required to keep the Registration Statement effective pursuant to clause (d) of this Section 7.1, furnish to the Purchaser with respect to the Registrable Securities registered under the Registration Statement (and to each underwriter, if any, of such Registrable Securities) such number of copies of prospectuses and such other documents as the Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities by the Purchaser;
(f) file documents required of the Company for normal Blue Sky clearance in states specified in writing by the Purchaser; provided, however, that the Company shall not contain be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(g) bear all expenses in connection with the procedures in paragraphs (a) through (f) of this Section 7.1 and the registration of the Registrable Securities pursuant to the Registration Statement, other than fees and expenses, if any, of counsel or other advisers to the Purchaser or the Other Purchasers, underwriting discounts, brokerage fees and commissions incurred by the Purchaser or the Other Purchasers, if any, or stock transfer taxes payable upon the resale of the Registrable Securities by the Purchaser or the Other Purchasers, if any;
(h) file a Form D with respect to the Securities as required under Regulation D and to provide a copy thereof to the Purchaser promptly after filing;
(i) during such period as the Company shall be required to keep the Registration Statement effective pursuant to clause (d) of this Section 7.1, notify each holder of Registrable Securities covered by such Registration Statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act or 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 omit omits to state a material fact required to be stated therein, therein or necessary to make the statement therein, statements therein not misleading in light of the circumstances in which they were made, not misleading, then existing; and
(j) provide a transfer agent and registrar for all Registrable Securities registered pursuant to enable the resale of the shares of Company Common Stock subject to the Transfer (the "this Agreement and a CUSIP number for all such Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) the later of the third anniversary of the Transfer, plusSecurities, in each casecase not later than the effective date of such Registration Statement. The Company understands that the Purchaser disclaims being an underwriter, a number of days equal to but the number of days, if any, the Registration Statement is suspended or Purchaser being deemed an underwriter shall not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, relieve the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;obligations it has
Appears in 1 contract
Sources: Securities Purchase Agreement (Prospect Venture Partners III L P)
Registration Procedures and Expenses. The Company hereby agrees that that, to the extent not prohibited by any applicable law or applicable interpretation of the staff of the SEC, it shall:
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, prepare and file with the SEC SEC, as soon as reasonably practicable following such request after a Contribution, but in no event more than one (1) business day after the Contribution, (i) a shelf registration statement on Form S-3 covering any Contributed Shares contributed in such Contribution that constitute Registrable Securities, or (ii) to the "extent that, at such time, the Company has an existing shelf registration statement on Form S-3 covering its common stock or preferred stock, as applicable, which may be used for the purposes contemplated herein, a prospectus supplement covering any Contributed Shares contributed in such Contribution that constitute Registrable Securities (such new or existing registration statement or any successor registration statement filed under the Securities Act, the “Registration Statement"”), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of Manager to sell the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust Securities from time to time on in the Nasdaq manner contemplated by the plan of distribution set forth in the Registration Statement, as amended by any applicable prospectus supplement or post-effective amendment thereto, and use all its commercially reasonable efforts to cause the Registration Statement to become effective promptly after filing and to remain continuously effective for so long as any of the Contributed Shares qualify as Registrable Securities (such period, the “Registration Period”); provided, however, that the Company shall not be required to file the Registration Statement or cause such Registration Statement to be declared effective as promptly as possible after filing during the pendency of any suspension period pursuant to Sections 2.2(b) or (c) below;
(b) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to remain continuously effective until the earlier of (i) the later of the third anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond and the Grace Period, (ii) such time as all Registrable Shares subject to prospectus related thereto filed with the Transfer may immediately be sold during any 90 day period SEC pursuant to Rule 144 424(b) under the Securities Act, or if no such filing is required, as included in the Registration Statement (iiithe “Prospectus”), as may be necessary to keep the Registration Statement effective at all times until the end of the Registration Period; provided, however, that it shall not be required to file any such amendment or supplement during the pendency of any suspension period pursuant to Sections 2.2(b) or (c) below;
(c) furnish the closing Manager with such reasonable number of an acquisition copies of the Prospectus in conformity with the requirements of the Securities Act, and such other documents as the Manager may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities by the Trust;
(d) use its commercially reasonable efforts to file documents required of the Company for normal blue sky clearance in exchange for publicly traded stock such states as the Manager shall reasonably designate in writing; provided, however, that the Company shall not be required to qualify to do business, consent to service of process or subject itself to taxation in any jurisdiction in which it is not now so qualified or has not so consented or become subjected;
(i.e.e) use its commercially reasonable efforts to cause any Contributed Shares consisting of Common Stock to be listed on the New York Stock Exchange as soon as reasonably practicable after the date of the applicable Contribution; and
(f) bear all expenses incurred by it in connection with the actions contemplated by paragraphs (a) through (e) of this Section 2.1 and the registration of the Registrable Securities pursuant to the Registration Statement, stock it being understood that has been the Company shall bear the expense of all brokerage fees, commissions, agency fees, underwriter discounts and fees, transfer taxes and legal fees incurred by the Manager or the Trust relating to the contribution of the shares, and the Trust shall bear the expense of all brokerage fees, commissions, agency fees, underwriter discounts and fees, transfer taxes and legal fees incurred by the Manager or the Trust thereafter including expenses incurred upon the sale or other disposition of Registrable Securities. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 2.1 that the Manager shall provide such reasonable assistance to the Company and furnish, or cause to be furnished, to the Company in writing such information regarding the Manager, the Trust, the Registrable Securities to be sold (including, in the case of any successor registration statement or prospectus supplement, the number of previously registered Registrable Securities actually sold pursuant to the Registration Statement), and the intended method or methods of disposition of the Registrable Securities, as shall be required to effect the registration of the Registrable Securities and as may be required from time to time under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;Act.
Appears in 1 contract
Sources: Registration Rights Agreement (Dominion Energy, Inc)
Registration Procedures and Expenses. The Company hereby agrees that it shall:: ------------------------------------
(a) if requested prepare and file with the SEC a registration statement (and it qualifies under applicable SEC rulesthe "Registration Statement") to undertake an S-3 registration covering the resale of the Shares by the Trust with regard Purchasers from time to time on the Voting Securities subject to Nasdaq National Market or on such securities market or system on which the Transfer Company's Common Stock shall then be publicly traded, or in privately negotiated transactions, no later than 30 days following the Closing Date;
(including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A)b) use its best efforts, subject to receipt of necessary information from the Trust and Purchasers, to cause the Employees, Registration Statement to become effective as soon as possible thereafter;
(c) prepare and file with the SEC as soon as practicable following such request a registration statement on Form S-3 (amendments and supplements to the "Registration Statement"), which Registration Statement shall not contain and the prospectus used in connection therewith as may be necessary to comply with the provisions of the Securities Act until the later of such time as all of the Shares have been sold pursuant thereto or, by reason of Rule 144(k) under the Securities Act or any untrue statement other rule of material fact or omit to state a material fact similar effect, such shares are no longer required to be stated therein, or necessary registered for the unrestricted sale thereof by the Purchasers;
(d) furnish to make the statement thereinPurchaser such number of copies of prospectuses and preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Purchaser may reasonably request, in light order to facilitate the public sale or other disposition of all or any of the circumstances in which they were madeShares held by the Purchaser, not misleadingprovided, to enable however, that the resale obligation of the shares Company to deliver copies of Company Common Stock prospectuses or preliminary prospectuses to the Purchaser shall be subject to the Transfer (the "Registrable Shares") receipt by the Trust Company of reasonable assurances from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until Purchaser that the earlier of (i) Purchaser will comply with the later applicable provisions of the third anniversary Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such prospectuses or preliminary prospectuses;
(e) file documents required of the TransferCompany for normal blue sky clearance in all states, plusprovided, however, that the Company shall not be required to qualify to do business or consent to service of process in each caseany jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraphs (a) through (c) of this Section 9.1, a number of days equal to the number of daysother than brokerage commissions or placement agent fees and fees and expenses, if any, the Registration Statement is suspended of counsel or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject other advisers to the Transfer may immediately be sold during any 90 day period pursuant Purchaser or the Other Purchasers with respect to Rule 144 under the Securities Act, or (iii) the closing of an acquisition registration and resale of the Registrable Securities in exchange Shares; and
(g) prepare and file additional listing applications for publicly traded stock (i.e.the Shares on the Nasdaq National Market. The Company understands that the Purchaser disclaims being an underwriter, stock that has been registered under but the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, Purchaser being deemed an underwriter shall not relieve the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;obligations it has hereunder.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested use its best efforts to file a Registration Statement with the SEC within ten (10) days following the Second Closing Date, but in no event after the date that is eighty (80) days after the First Closing Date (the “Filing Date”), to register the Registrable Shares and it qualifies shares of the Common Stock listed on Schedule 7.2 attached hereto on Form S-3 under applicable the Securities Act (providing for shelf registration of such Registrable Shares and shares of the Common Stock listed on Schedule 7.2 under SEC rulesRule 415) or on such other form which is appropriate to undertake an S-3 registration register such Registrable Shares for resale from time to time by the Trust Purchasers; provided, however, if a Registration Statement covering the Registrable Shares is not filed with regard the SEC on or prior to the Voting Securities subject Filing Date, the Company will make payments to each Purchaser, as liquidated damages and not as a penalty, in an amount equal to one percent (1%) of the aggregate amount invested by such Purchaser (the amount invested by a Purchaser shall include the purchase price of the Common Shares acquired by such Purchaser and shall exclude any amount attributable to the Transfer Warrants acquired by such Purchaser pursuant to this Agreement) for each 30 day period (including, or a portion thereof) following the Employee Shares date by which such Registration Statement should have been filed for which no Registration Statement is filed with respect to the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A)Registrable Securities;
(b) use its best efforts, subject to receipt of necessary information from the Trust Purchasers, to cause any such Registration Statement filed pursuant to Section 7.2(a) above to become effective as promptly after filing of such Registration Statement as practicable but in any event by the date that is one hundred (100) days following the First Closing Date; provided, however, that in the event that a Registration Statement is reviewed by the SEC, then such date shall be the date that is one hundred fifty (150) days following the First Closing Date. If (i) the Company fails to file with the SEC a request for acceleration in accordance with Rule 461 promulgated under the Securities Act, within five business days of the date that the Company is notified (orally or in writing, whichever is earlier) by the SEC that a Registration Statement will not be “reviewed,” or is not subject to further review, or (ii) the Registration Statement has not been declared effective by the appropriate date in the preceding sentence, then the Company will make payments to each Purchaser, as liquidated damages and not as a penalty, in an amount equal to one percent (1%) of the Employees, purchase price attributed to the Common Shares purchased hereunder for each thirty (30) day period (or a portion thereof) following the date by which such Registration Statement should have been effective as described above had the Company used its best efforts to have the Registration Statement declared effective;
(c) prepare and file with the SEC as soon as practicable following such request a registration statement on Form S-3 (the "Registration Statement"), which amendments and supplements to such Registration Statement shall not contain and the prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective until termination of such obligation as provided in Section 7.5 below, subject to the Company’s right to suspend pursuant to Section 7.4;
(d) furnish to each Purchaser (and to each underwriter, if any, of such Registrable Shares) such number of copies of prospectuses in conformity with the requirements of the Securities Act and such other documents as the Purchasers may reasonably request, in order to facilitate the public sale or other disposition of all or any untrue statement of material fact or omit to state the Registrable Shares by the Purchasers, including a material fact required copy of the prospectus to be stated therein, or necessary furnished to make the statement therein, in light each Purchaser pursuant to Section 7.2(g);
(e) file such documents as may be required of the circumstances in which they were made, not misleading, to enable Company for normal securities law clearance for the resale of the shares Registrable Shares in such states of the United States as may be reasonably requested by each Purchaser; provided, however, that the Company Common Stock shall not be required in connection with this paragraph (e) to qualify as a foreign corporation or execute a general consent to service of process in any jurisdiction;
(f) upon notification by the SEC that that the Registration Statement will not be reviewed or is no longer subject to further review and comments by the Transfer SEC, the Company shall within five business days request acceleration of such Registration Statement such that it becomes effective at 5:00 p.m. New York Time on the date that effectiveness is requested (the "Registrable Shares"“Effective Date”);
(g) deliver to each Purchaser, by the Trust from time to 9:00 a.m. New York time on the Nasdaq day following the Effective Date, without charge, an electronic copy of each prospectus or prospectuses (including each form of prospectus) and each amendment or supplement thereto. The Company hereby consents to the use all reasonable of such prospectus and each amendment or supplement thereto by each of the Purchasers in connection with the offering and sale of the Registrable Securities covered by such prospectus and any amendment or supplement thereto;
(h) advise each Purchaser promptly:
(i) of the effectiveness of the Registration Statement or any post-effective amendments thereto;
(ii) of any request by the SEC for amendments to the Registration Statement or amendments to the prospectus or for additional information relating thereto;
(iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Registrable Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes; and
(iv) of the existence of any fact and the happening of any event that makes any statement of a material fact made in the Registration Statement, the prospectus and amendment or supplement thereto, or any document incorporated by reference therein, untrue, or that requires the making of any additions to or changes in the Registration Statement or the prospectus in order to make the statements therein not misleading;
(i) use its best efforts to cause such Registration Statement all Registrable Shares to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) the later of the third anniversary of the Transfer, plus, in listed on each case, a number of days equal to the number of dayssecurities exchange, if any, on which equity securities by the Company are then listed;
(j) bear all expenses in connection with the procedures in paragraphs (a) through (g) of this Section 7.2 and the registration of the Registrable Shares on such Registration Statement is suspended or not and the satisfaction of the blue sky laws of such states; and
(k) otherwise use commercially reasonable efforts to make available to its security holders no later than the Availability Date (as defined below), an earnings statement covering a period of at least twelve (12) months, beginning after the effective beyond date of each Registration Statement, which earnings statement shall satisfy the Grace Period, (iiprovisions of Section 11(a) such time as all Registrable Shares subject to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under of the Securities Act, or including Rule 158 promulgated thereunder (iii) for the closing purpose of an acquisition this subsection 7.2(i), “Availability Date” means the 45th day following the end of the Registrable Securities in exchange for publicly traded stock (i.e.fourth fiscal quarter after the fiscal quarter that includes the effective date of such Registration Statement, stock that has been registered under except that, if such fourth fiscal quarter is the Securities Act for issuance to last quarter of the Company’s fiscal year, “Availability Date” means the 90th day after the end of such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"fourth fiscal quarter). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it Borrower shall:
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the EmployeesLender, prepare and file with the SEC as soon as practicable and in no event later than thirty (30) days following such request the Closing Date, a registration statement on Form S-3 SB-2 (the "“Registration Statement"”), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of 100% of the shares Conversion Shares and 100% of Company Common Stock subject to the Transfer Warrant Shares, assuming that all of the Credit Facility is advanced and converted by the Lender, (collectively, the "“Registrable Shares"”) by the Trust Lender from time to time on the Nasdaq OTCBB and use all reasonable best efforts to cause such the Registration Statement to be declared effective as promptly as possible after filing and and, subject to Section 7.2(b) below, to remain continuously effective until the earlier of (i) the later of the third second (2nd) anniversary of the TransferClosing Date, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject converted or exercised, as applicable, by the Lender pursuant to the Transfer may immediately be this Agreement have been sold during any 90 day period thereunder or pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "“Registration Period"”). In the event that Form S-3 SB-2 is unavailable for such registration, the Company Borrower shall use such other form as is available for such a registration. For purposes ; provided, however, that the Borrower will promptly file a new Registration Statement on Form S- 3 covering the resale of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(bthe Registrable Shares in the event that such Form becomes available at any time while Registrable Shares are outstanding and have not yet been sold to the public;
(b) prepare and file with the SEC such amendments (including post-effective amendments) and 1.2(csupplements to the Registration Statement and the prospectus used in connection therewith as may be necessary to keep the Registration Statement effective at all times until the end of the Registration Period, subject to Section 7.2(b) below;
(c) furnish to the Lender with respect to the Registrable Shares registered under the Registration Statement such reasonable number of copies of the Registration Statement, prospectuses and preliminary prospectuses in excess conformity with the requirements of the Securities Act and such other documents as the Lender may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Shares by the Lender;
(d) file documents required of the Borrower for normal blue sky clearance in states specified in writing by the Lender; provided, however, the Borrower shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(e) use its reasonable best efforts to cause the Registration Statement to be filed no later than sixty (60) days following the Closing Date (the “Filing Deadline”) and declared effective on or prior to one hundred and twenty (120) days following the Closing Date (unless such Registration Statement is fully reviewed by the staff of the SEC in which case such one hundred and twenty (120) day period shall be extended to one hundred and fifty (150) days);
(f) within five (5) Business Days after a Registration Statement covering the aggregate Registrable Shares is ordered effective by the SEC, the Borrower shall deliver, or shall cause its legal counsel to deliver, to the transfer agent for such Registrable Shares (with copies to the Lender) confirmation that such Registration Statement has been declared effective by the SEC;
(g) bear all expenses in any twelve month connection with the procedures in paragraph (a) through (f) of this Section 7.1 and the registration of the Registrable Shares pursuant to the Registration Statement except for the fees and expenses, if any, of legal counsel or advisers to the Lender or underwriting discounts, brokerage fees and commissions incurred by the Lender, if any; and
(h) not, for a period of time;thirty (30) days after the effectiveness of the Registration Statement, authorize or issue any shares of its capital stock to any person or entity except as may be required by this Agreement, the Exchange Agreement or any securities that are issued pursuant to a safe harbour from the registration and prospectus requirements of the Securities Act or to a non-U.S. person pursuant to Regulation S under the Securities Act. It shall be a condition precedent to the obligations of the Borrower to take any action pursuant to this Section 7.1 that the Lender shall furnish to the Borrower such information regarding itself, the Registrable Shares to be sold by the Lender, and the intended method of disposition of such securities as shall be required to effect the registration of the Registrable Shares.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it As provided in Section 10.1 hereof, ILEX shall, use its commercially reasonable efforts to do each of the following:
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer limitations under Section 10.1 hereof, use its commercially reasonable efforts to cause such Registration Statement to remain effective for two years as provided herein;
(includingb) cooperate with Seller and any underwriter who shall sell the Stock Consideration in connection with their review of ILEX made in connection with such registration, and in the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions case of any underwritten offering of the Exhibit A)Stock Consideration, subject to receipt of necessary information from the Trust enter into and the Employees, perform its obligations under an indemnity agreement in usual and customary form;
(c) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as soon may be necessary to keep such registration statement effective until the earlier to occur of the sale of all of the Stock Consideration by Seller or the second anniversary of the effectiveness of the registration statement, and to comply with the provisions of the Securities Act and the Exchange Act, with respect to the disposition of all the Stock Consideration covered by such registration statement for such period;
(d) furnish to Seller such number of copies of the prospectus forming a part of such registration statement (including each preliminary prospectus), in conformity with the requirements of the Securities Act, and such other documents as Seller may reasonably request in order to facilitate the disposition of the Stock Consideration;
(e) notify Seller, at any time when the registration statement or any amendment thereto or any prospectus relating to the Stock Consideration is required to be delivered under the Securities Act, of the happening of any event as a result of which such registration statement or prospectus forming a part of such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, as promptly as practicable following prepare and file with the Commission, and furnish to Seller a reasonable number of copies of, such request a supplement to or amendment of such registration statement on Form S-3 (or prospectus that may be necessary so that, as thereafter delivered to the "Registration Statement")purchasers of the Stock Consideration, which Registration Statement such registration statement or prospectus shall not contain include any untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statement therein, statements therein not misleading in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer then existing;
(the "Registrable Shares"f) by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of notify Seller (i) the later when such registration statement, or any post-effective amendment to such registration statement, shall have become effective, or any amendment of the third anniversary of the Transfer, plus, in each case, a number of days equal or supplement to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Periodprospectus used in connection therewith shall have been filed, (ii) of any request by the SEC to amend such time as all Registrable Shares subject registration statement or to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Actamend or supplement such prospectus or for additional information, or (iii) the closing of an acquisition of the Registrable Securities in exchange issuance by the SEC of any stop order suspending the effectiveness of such registration statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threatening of any proceedings for publicly traded stock any of such purposes and (i.e., stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaqiv) of another entity (the "Registration Period"). In suspension of the event that Form S-3 is unavailable qualification of such securities for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate offering or sale in any twelve month period jurisdiction, or of time;the institution of any proceedings for any such purposes; and
(g) use its commercially reasonable efforts to obtain the lifting of any stop order that might be issued suspending the effectiveness of such registration statement or any order preventing or suspending the use of any preliminary prospectus.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested use its commercially reasonable efforts, but in no event later than 45 days after Closing, to prepare and file, with the Commission a Registration Statement under the Securities Act following the date of Closing, and use its reasonable best efforts to cause the Registration Statement to become effective as soon as practicable thereafter, relating to the resale pursuant to Rule 415 under the Securities Act of the Shares (and it qualifies under applicable SEC rules“Registrable Stock”) to undertake an S-3 registration by the Trust with regard holders thereof (“Holders”) from time to time through the automated quotation system of Nasdaq or the facilities of any national securities exchange on which the Common Shares are then traded or in privately-negotiated transactions;
(b) If a Registration Statement covering the Shares is not (i) prepared and filed within 45 days of Closing the Company will make pro rata payments to each Purchaser as liquidated damages and not as a penalty, in an amount equal to 1.0% of the aggregate amount paid by such Purchaser on the Closing Date to the Voting Securities subject Company for any 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been filed for which no Registration Statement is filed with respect to the Transfer Shares or following the date by which the Registration Statement should have been declared effective. Such payment shall be made to each Purchaser in cash not later than three Business Days following the end of 30-day period;
(includingc) each time the Company shall determine to file a Registration Statement in connection with the proposed offer and sale for money of any of its securities by it or any of its security holders, the Employee Shares should Company will give written notice of its determination to all Holders. Upon the Employees execute written request of a joinder agreeing Holder given within twenty (20) days after the giving of any such notice by the Company, the Company will use its commercially reasonable efforts to cause all such shares of Registrable Stock, the Holders of which have so requested registration thereof, to be bound included in such Registration Statement, all to the extent requisite to permit the sale or other disposition by the prospective seller or sellers of the Registrable Stock to be so registered. If the Registration Statement is to cover an underwritten distribution, the Company shall use its commercially reasonable efforts to cause the Registrable Stock requested for inclusion pursuant to this paragraph to be included in the underwriting on the same terms and provisions conditions as the securities otherwise being sold through the underwriters. If, in the good faith judgment of the Exhibit A)managing underwriter of such public offering, subject the inclusion of any or all of the Registrable Stock requested for inclusion pursuant to this paragraph and other securities would interfere with the successful marketing of a smaller number of shares to be offered, then the number of shares of Registrable Stock and other securities to be included in the offering (except for shares to be issued by the Company in an offering initiated by the Company) shall be reduced accordingly on a pro rata basis with the other security holders;
(d) promptly and in good faith respond to all Commission’s comments on the Registration Statement, and within two (2) business days of receipt of necessary information an indication from the Trust and Commission that it has no further comments, request acceleration of the Employees, effectiveness of the registration at the earliest practicable time;
(e) prepare and file with the SEC as soon as practicable following Commission such request a registration statement on Form S-3 (amendments and supplements to the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to and the prospectus used in connection therewith as may be stated therein, or necessary to make keep the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) the later of the third anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace PeriodClosing Date, (ii) the date on which the Holder may sell all the Shares then held by the Holder within a three-month period in accordance with Rule 144 under the Securities Act (“Rule 144”), or (iii) such time as all the Registrable Shares subject Stock purchased by the Holder have been sold pursuant to a registration statement;
(f) so long as the Registration Statement is effective covering the resale of the Registrable Stock owned by the Holders, furnish to the Transfer Holder such reasonable number of copies of prospectuses and such other documents as the Holders may immediately reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Stock;
(g) file documents required of the Company for blue sky clearance in states specified in writing by the Purchaser; provided, however, that the Company shall not be sold during required to qualify to do business or consent to service of process in any 90 day jurisdiction in which it is not so qualified or has not so consented;
(h) bear all expenses in connection with the procedures in paragraphs (a) through (f) of this Section 7.2 and the registration of the Shares pursuant to the Registration Statement, except for any underwriting discounts, brokerage fees and commissions incurred by the Purchaser, if any; and
(i) with a view to making available to the Purchaser the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the Commission that may at any time permit the Purchaser to sell the Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Purchaser’s Shares may be resold within a given three-month period pursuant to Rule 144 or any other rule of similar effect or (B) such date as all of the Purchaser’s Shares shall have been resold and (ii) file with the Commission in a timely manner all reports and other documents required of the Company under the Securities Act and under the Exchange Act.
(j) notify the Holders participating in such registration, promptly after it shall receive notice thereof, of the date and time when such Registration Statement and each post-effective amendment thereto has become effective or a supplement to any prospectus forming a part of such Registration Statement has been filed;
(k) notify the Holders participating in such registration promptly of any request by the Commission or any state securities commission or agency for the amending or supplementing of such Registration Statement or prospectus or for additional information;
(l) prepare and promptly file with the Commission, and promptly notify such participating Holders of the filing of, such amendments or supplements to such Registration Statement or prospectus as may be necessary to correct any statements or omissions if, at the time when a prospectus relating to such securities is required to be delivered under the Securities Act, any event has occurred as the result of which any such prospectus or any other prospectus as then in effect would include an 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 not misleading;
(iiim) advise such participating Holders, promptly after it shall receive notice or obtain knowledge thereof, of the closing issuance of any stop order by the Commission or any state securities commission or agency suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for that purpose and promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
(n) cooperate with the Holders to facilitate the timely preparation and delivery (under normal way settlement procedures) of certificates representing securities to be sold pursuant to any Registration Statement free of any restrictive legends and in such denominations and registered in such names as Holders may request prior to sales of securities pursuant to such Registration Statement;
(o) comply with all applicable rules and regulations of the Commission and shall make generally available as soon as practicable after the effective date of the applicable Registration Statement an acquisition earnings statement satisfying the provisions of Section 11(a) of the Securities Act;
(p) permit the Purchaser to assign the rights under this Section 7 to any other person in connection with a transfer of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;Stock.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shallis obligated to do the following:
(a) if requested Within the later to occur of (and it qualifies under applicable SEC rulesi) to undertake an S-3 registration by sixty (60) days following the Trust with regard to final Closing Date for the Voting Securities subject to Units or (ii) May 31, 1999 (the Transfer (including"Filing Date"), the Employee Shares should the Employees execute a joinder agreeing Company shall use its reasonable efforts to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, prepare and file with the SEC as soon as practicable following such request Commission a registration statement in order to register with the Commission the sale by the Purchasers, from time to time, of the Shares through Nasdaq or the facilities of any national securities exchange on Form S-3 which the Company's Common Stock is then traded, or in privately-negotiated transactions (the a "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of . The Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and will use all its reasonable efforts to cause such ensure that the Registration Statement to be is declared effective within 60 days of the filing date of the Registration Statement with the Commission.
(b) The Company shall use reasonable efforts to prepare and file with the Commission (i) such amendments and supplements to the Registration Statement and the prospectus used in connection therewith, (ii) such SEC Reports and (iii) such other filings required by the Commission, as promptly as possible after filing and may be necessary to remain keep the Registration Statement continuously effective until the earlier of (i) the later of the third second anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended first date on which no Warrants remain unexercised or not effective beyond the Grace Period, unexpired or (ii) such time as date on which all Registrable Shares subject Securities held by and issuable to the Transfer Purchasers may immediately be sold during any 90 day ninety (90) period pursuant to under Rule 144 under (or successor rule promulgated by the Securities ActSEC); provided, or however, that in the event of a Suspension Period (iii) as defined below), the closing Company shall extend the period of an acquisition effectiveness of such Registration Statement by the aggregate number of days of each such Suspension Period. The Company may suspend use of the Registrable Securities prospectus when it deems necessary, in exchange for publicly traded stock its reasonable judgment, until such time as the Company subsequently authorizes use of the prospectus (i.e.each such period, stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Suspension Period"). In Upon the event that Form S-3 is unavailable for such registrationdeclaration of a Suspension Period, the Company shall use reasonable best efforts to end the Suspension Period as quickly as possible. Notwithstanding the foregoing, the Company shall not allow a Suspension Period to continue for more than 60 days unless the Company shall deliver to the Purchasers a second notice, which shall have the effect of extending the Suspension Period by up to an additional 30 days. In no event shall the Company extend a Suspension Period beyond such 90 day period. The Company shall not under any circumstances be entitled to exercise its rights under this subparagraph to effect a Suspension Period more than two times in any 12 month period. Each Purchaser agrees that such Purchaser will not sell any Shares pursuant to the prospectus beginning at the time the Company gives such Purchaser notice of the suspension of the prospectus and ending at the time the Company gives such Purchaser notice of the termination of the Suspension Period. Each Purchaser further agrees to promptly notify the Company of the sale of all of such Purchaser's Securities.
(c) In order to facilitate the public sale or other form disposition of all or any of the shares by each Purchaser, the Company shall furnish to each Purchaser with respect to the Shares registered under the Registration Statement such number of copies of prospectuses and preliminary prospectuses as such Purchaser reasonably requests in conformity with the requirements of the Securities Act.
(d) The Company shall file documents required of the Company for normal blue sky clearance in states specified in writing by each Purchaser; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is available for such a registrationnot now so qualified or has not so consented.
(e) Other than fees and expenses, if any, of counsel or other advisers to the Purchasers, which fees and expenses shall be borne by the Purchasers except as provided under Section 12.8 below, the Company shall bear all expenses (exclusive of underwriting discounts and commissions) in connection with the procedures in paragraphs (a) through (d) of this Section 9.1. For purposes of this Section 1.1(a)9.1, the term "Grace PeriodPurchaser" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in also refer to the aggregate in any twelve month period of time;Placement Agent.
Appears in 1 contract
Sources: Common Stock and Warrant Purchase Agreement (Avigen Inc \De)
Registration Procedures and Expenses. The Subject to Section 4.3, Section 4.5 and Section 4.7 hereof, the Company hereby agrees that it shall:
(a) if requested file a shelf resale registration statement (and it qualifies under applicable SEC rulesincluding any preliminary prospectus, final prospectus, exhibit or amendment included in or relating to such registration statement, a “Registration Statement”) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, prepare and file with the SEC Commission as soon as practicable practicable, but in no event later than 30 days following such request a registration statement the Closing (the “Filing Date”) to register on Form S-3 (all of the "Registration Statement"), which Registrable Shares then issued or issuable upon exercise of the Purchased Pre-Funded Warrants issued at the Closing for resale pursuant to Rule 415 promulgated under the Securities Act. The Registration Statement shall not contain register for resale any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make securities other than the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) the later of the third anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable not available for such registrationthe registration of the Registrable Shares, the Company shall use register the resale of the Registrable Shares on such other form as is available to the Company;
(b) use its commercially reasonable efforts to cause the Registration Statement to be declared effective as soon as practicable, and in any event within 90 days following the Closing Date (or, in the event the Staff (as defined below) reviews and has written comments to the Registration Statement, within 120 days following the Closing Date) (the earlier of the foregoing or the applicable date set forth in Section 4.2(g), the “Effectiveness Deadline”), such efforts to include, without limiting the generality of the foregoing, preparing and filing with the Commission any financial statements or other information that is required to be filed prior to the effectiveness of the Registration Statement;
(c) not less than five Trading Days prior to the filing of a Registration Statement or any related prospectus or any amendment or supplement thereto, furnish via email to those Purchasers who have supplied the Company with email addresses copies of all such documents proposed to be filed, which documents (other than any document that is incorporated or deemed to be incorporated by reference therein) will be subject to the review of such Purchasers. The Company shall reflect in each such document when so filed with the Commission such comments regarding the Purchasers and the plan of distribution as the Purchasers may reasonably and promptly propose no later than three Trading Days after the Purchasers have been so furnished with copies of such documents as aforesaid;
(d) promptly prepare and file with the Commission such amendments and supplements to such Registration Statements and the prospectus used in connection therewith as may be necessary to keep such Registration Statements continuously effective and free from any material misstatement or omission to state a material fact therein until termination of such obligation as provided in Section 4.8 below, subject to the Company’s right to suspend pursuant to Section 4.7;
(e) furnish to the Purchasers such number of copies of prospectuses in conformity with the requirements of the Securities Act and such other documents as the Purchasers may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Shares by the Purchasers;
(f) file such documents as may be required of the Company for normal securities law clearance for the resale of the Registrable Shares in such states of the United States as may be reasonably requested by the Purchasers and use its commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain effectiveness of the Registration Statements; provided, however, that the Company shall not be required in connection with this Section 4.2(f) to qualify as a registration. For purposes foreign corporation or execute a general consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(g) upon notification by the Commission that a Registration Statement will not be reviewed or is not subject to further review by the Commission, the Company shall within three Trading Days following the date of such notification request acceleration of such Registration Statement (with the requested effectiveness date to be not more than two Trading Days later);
(h) upon notification by the Commission that that the Registration Statement has been declared effective by the Commission, the Company shall file the final prospectus under Rule 424 of the Securities Act (“Rule 424”) within the applicable time period prescribed by Rule 424;
(i) advise the Purchasers promptly (and in any event within two Trading Days thereof):
(i) of the effectiveness of the Registration Statement or any post-effective amendments thereto;
(ii) of any request by the Commission for amendments to the Registration Statement or amendments to the prospectus or for additional information relating thereto;
(iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Registrable Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes; and
(iv) of the existence of any fact and the happening of any event that makes any statement of a material fact made in the Registration Statement, the prospectus and amendment or supplement thereto, or any document incorporated by reference therein, untrue, or that requires the making of any additions to or changes in the Registration Statement or the prospectus in order to make the statements therein not misleading;
(j) cause all Registrable Shares to be listed on each securities exchange, if any, on which equity securities by the Company are then listed; and
(k) bear all expenses in connection with the procedures in paragraphs (a) through this paragraph (k) of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) 4.2 and 1.2(c) in excess the registration of sixty (60) days in the aggregate in any twelve month period Registrable Shares on such Registration Statement and the satisfaction of time;the blue sky laws of such states.
Appears in 1 contract
Sources: Securities Purchase Agreement (Leap Therapeutics, Inc.)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested file a Resale Registration Statement (and it qualifies under applicable SEC rulesthe “Mandatory Registration Statement”) with the Commission on or before the date forty-five (45) days following the Closing Date (the “Filing Date”) to undertake an register all of the Registrable Shares on Form S-3 under the Securities Act (providing for shelf registration by of such Registrable Shares under Commission Rule 415). In the Trust with regard event that Form S-3 is not available for the registration of the Registrable Shares, the Company shall register the resale of the Registrable Shares on such other form as is available to the Voting Securities subject Company;
(b) use its reasonable best efforts to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing cause such Mandatory Registration Statement to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, prepare and file with the SEC declared effective as soon as practicable and in any event within sixty (60) days following such request a registration statement on Form S-3 the Filing Date (the "Registration Statement"foregoing or the applicable date set forth in Section 4.2(i), which Registration Statement shall not contain the “Effectiveness Deadline”), such efforts to include, without limiting the generality of the foregoing, preparing and filing with the Commission any untrue statement of material fact financial statements or omit to state a material fact other information that is required to be stated therein, or necessary filed prior to make the statement thereineffectiveness of such Mandatory Registration Statement;
(c) notwithstanding anything contained in this Agreement to the contrary, in light the event that the Commission limits the amount of Registrable Shares or otherwise requires a reduction in the number of Registrable Shares that may be included and sold by the Purchasers in the Mandatory Registration Statement (in each case, subject to Section 4.4), then the Company shall prepare and file (i) within ten (10) Trading Days of the circumstances first date or time that such excluded Registrable Shares may then be included in a Resale Registration Statement if the Commission shall have notified the Company that certain Registrable Shares were not eligible for inclusion in the Resale Registration Statement or (ii) in all other cases, within twenty (20) days following the date that the Company becomes aware that such additional Resale Registration Statement is required (the “Additional Filing Date”), a Resale Registration Statement (any such Resale Registration Statement registering such excluded Registrable Shares, an “Additional Registration Statement” and, together with the Mandatory Registration Statement, a “Resale Registration Statement”) to register any Registrable Shares that have been excluded (or, if applicable, the maximum number of such excluded Registrable Shares that the Company is permitted to register for resale on such Additional Registration Statement consistent with Commission guidance), if any, from being registered on the Mandatory Registration Statement;
(d) (i) not less than two (2) Trading Days prior to the filing of a Registration Statement or any related prospectus or any amendment or supplement thereto, furnish via email to those Purchasers who have supplied the Company with email addresses copies of all such documents proposed to be filed, which they were made, not misleading, documents (other than any document that is incorporated or deemed to enable the resale of the shares of Company Common Stock be incorporated by reference therein) will be subject to the Transfer review of such Purchasers and (ii) reflect in each such document when so filed with the "Registrable Shares"Commission such comments regarding the Purchasers and the plan of distribution as the Purchasers may reasonably and promptly propose no later than two (2) by Trading Days after the Trust from time to time on the Nasdaq and Purchasers have been so furnished with copies of such documents as aforesaid;
(e) use all its reasonable best efforts to cause any such Additional Registration Statement to be declared effective as promptly as possible after practicable following the Additional Filing Date, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the Commission any financial statements or other information that is required to be filed prior to the effectiveness of any such Additional Registration Statement;
(f) prepare and file with the Commission such amendments and supplements to remain such Resale Registration Statements and the prospectus used in connection therewith as may be necessary to keep such Resale Registration Statements continuously effective and free from any material misstatement or omission to state a material fact therein until termination of such obligation as provided in Section 4.7 below, subject to the earlier Company’s right to suspend pursuant to Section 4.6;
(g) furnish to the Purchasers such number of copies of prospectuses in conformity with the requirements of the Securities Act and such other documents as the Purchasers may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Shares by the Purchasers;
(h) file such documents as may be required of the Company for normal securities law clearance for the resale of the Registrable Shares in such states of the United States as may be reasonably requested by the Purchasers and use its commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain effectiveness of the Resale Registration Statements; provided, however, that the Company shall not be required in connection with this Section 4.2(h) to qualify as a foreign corporation or execute a general consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(i) upon notification by the later Commission that the Resale Registration Statement will not be reviewed or is not subject to further review by the Commission, the Company shall within three (3) Trading Days following the date of such notification request acceleration of such Resale Registration Statement (with the requested effectiveness date to be not more than two (2) Trading Days later);
(j) upon notification by the Commission that that the Resale Registration Statement has been declared effective by the Commission, the Company shall file the final prospectus under Rule 424 of the third anniversary Securities Act (“Rule 424”) within the applicable time period prescribed by Rule 424;
(k) advise the Purchasers promptly (and in any event within two (2) Trading Days thereof):
(i) of the Transfer, plus, in each case, a number effectiveness of days equal the Resale Registration Statement or any post-effective amendments thereto;
(ii) of any request by the Commission for amendments to the number Resale Registration Statement or amendments to the prospectus or for additional information relating thereto;
(iii) of daysthe issuance by the Commission of any stop order suspending the effectiveness of the Resale Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Registrable Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes; and
(iv) of the existence of any fact and the happening of any event that makes any statement of a material fact made in the Resale Registration Statement, the prospectus and amendment or supplement thereto, or any document incorporated by reference therein, untrue, or that requires the making of any additions to or changes in the Resale Registration Statement or the prospectus in order to make the statements therein not misleading;
(l) cause all Registrable Shares to be listed on each securities exchange, if any, on which equity securities by the Registration Statement is suspended or not effective beyond Company are then listed; and
(m) bear all expenses in connection with the Grace Period, procedures in paragraphs (iia) such time as all Registrable Shares subject to through (l) of this Section 4.2 and the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition registration of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under Shares on such Resale Registration Statement and the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) satisfaction of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes blue sky laws of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;applicable states.
Appears in 1 contract
Sources: Securities Purchase Agreement (Magenta Therapeutics, Inc.)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, prepare and file with the SEC Securities and Exchange Commission (the “SEC”), as soon as reasonably practicable following such request after the date of the Contribution, but in no event more than 30 days after the Contribution, a shelf registration statement on Form S-3 S-1 covering the Registrable Shares, (such registration statement and any successor registration statement filed under the Securities Act of 1933, as amended (the "“Securities Act”), hereinafter referred to as the “Registration Statement"”), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of Manager to sell the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust Shares from time to time on in the Nasdaq manner contemplated by the plan of distribution set forth in the Registration Statement, as amended by any prospectus supplement or post-effective amendment thereto, and use all its reasonable commercial efforts to cause such Registration Statement to be declared effective as promptly as reasonably possible after filing and to remain continuously effective until the earlier earliest of (i) the later of the third anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Perioddate on which all Registrable Shares have been sold, (ii) such time as all the date which is 90 days after the date on which the number of Registrable Shares subject held by the Trust is less than one percent of the shares of Common Stock then outstanding and (iii) the fifth anniversary of the Contribution (the “Registration Period”); provided, however, that it shall not be required to file such Registration Statement or cause such Registration Statement to be declared effective during the Transfer may immediately be sold during pendency of any 90 day suspension period pursuant to Sections 1.2(c) or (d) below;
(b) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus filed with the SEC pursuant to Rule 144 424(b) under the Securities Act, or if no such filing is required, as included in the Registration Statement (iiithe “Prospectus”), as may be necessary to keep the Registration Statement effective at all times until the end of the Registration Period; provided, however, that it shall not be required to file any such amendment or prospectus supplement during the pendency of any suspension period pursuant to Sections 1.2(c) or (d) below;
(c) furnish the closing Manager with such reasonable number of an acquisition copies of the Prospectus in conformity with the requirements of the Securities Act, and such other documents as the Manager may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities Shares by the Manager;
(d) use its reasonable commercial efforts to file documents required of the Company for normal blue sky clearance in exchange for publicly traded stock such states as the Manager shall reasonably designate in writing; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(i.e.e) use its reasonable commercial efforts to cause the Registrable Shares to be listed on the New York Stock Exchange (the “NYSE”) as soon as reasonably practicable after the date of the Contribution; and
(f) bear all expenses in connection with the actions contemplated by paragraphs (a) through (e) of this Section 1.1 and the registration of the Registrable Shares pursuant to the Registration Statement, stock including reasonable fees and expenses of legal counsel to the Manager incurred in connection with the registration and sale of the Registrable Shares, such fees and expenses of legal counsel not to exceed $30,000 in the aggregate, but excluding underwriting discounts, brokerage fees and commissions incurred by the Manager, the Trust or the Plans, if any. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 1.1 that has been registered the Manager shall provide such reasonable assistance to the Company and furnish, or cause to be furnished, to the Company in writing such information regarding the Manager, the Registrable Shares to be sold, and the intended method or methods of disposition of the Registrable Shares, as shall be required to effect the registration of the Registrable Shares and as may be required from time to time under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) rules and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;regulations thereunder.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested (within 30 days following the Closing, prepare and it qualifies under applicable SEC rules) file with the Commission a Registration Statement in order to undertake an S-3 registration register with the Commission the sale of Shares by the Trust with regard Purchaser from time to time through the Voting Securities automated quotation system of the Nasdaq National Market or the facilities of any national securities exchange on which the Company's common stock is then traded or in privately negotiated transactions;
(b) use its best efforts, subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and Purchasers, to cause the Employees, Registration Statement to become effective within 60 days after the Registration Statement is filed by the Company;
(c) prepare and file with the SEC as soon as practicable following Commission such request a registration statement on Form S-3 (amendments and supplements to the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to and the prospectus used in connection therewith as may be stated therein, or necessary to make keep the statement thereinRegistration Statement effective for a period of three years following the Closing or, if earlier, until all of the Shares have been sold pursuant thereto;
(d) furnish to the Purchaser with respect to the Shares registered under the Registration Statement such number of copies of prospectuses and preliminary prospectuses in conformity with the requirements of the Securities Act, in light order to facilitate the public sale or other disposition of all or any of the circumstances in which they were madeShares by the Purchaser; PROVIDED, not misleadingHOWEVER, to enable that the resale obligation of the shares Company to deliver copies of Company Common Stock prospectuses or preliminary prospectuses to the Purchaser shall be subject to the Transfer (the "Registrable Shares") receipt by the Trust Company of reasonable assurances from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until Purchaser that the earlier of (i) Purchaser will comply with the later applicable provisions of the third anniversary Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such prospectuses or preliminary prospectuses;
(e) file documents required of the TransferCompany for normal blue sky clearance in states specified in writing by the Purchaser; PROVIDED, plusHOWEVER, that the Company shall not be required to qualify to do business or consent to service of process in each case, a number any jurisdiction in which it is not now so qualified or has not so consented; and
(f) bear all expenses in connection with the procedures in paragraphs (a) through (e) of days equal this Section 7.1 and the registration of the Shares pursuant to the number of daysRegistration Statement, other than fees and expenses, if any, the Registration Statement is suspended of counsel or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject other advisers to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under Purchaser or the Securities Act, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;Other Purchasers.
Appears in 1 contract
Sources: Purchase Agreement (Imre Corp)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested subject to receipt of necessary information from the Investors, prepare and file with the SEC, within five (and it qualifies under applicable SEC rules5) business days after the Subscription Date, the Registration Statement to undertake an S-3 registration enable the resale of the Shares by the Trust with regard Investors from time to time through the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions automated quotation system of the Exhibit A)Nasdaq National Market or in privately-negotiated transactions;
(b) use its reasonable efforts, subject to receipt of necessary information from the Trust and Investors, to cause the Employees, Registration Statement to become effective within 90 days after the Registration Statement is filed by the Company;
(c) prepare and file with the SEC as soon as practicable following such request a registration statement on Form S-3 (amendments and supplements to the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to and the Prospectus used in connection therewith as may be stated therein, or necessary to make keep the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement current and effective for a period not exceeding, with respect to be declared effective as promptly as possible after filing and to remain continuously effective until each Investor's Shares purchased hereunder, the earlier of (i) the later of the third second anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace PeriodClosing Date, (ii) such time as the date on which the Investor may sell all Registrable Shares subject to then held by the Transfer may immediately be sold during any 90 day period pursuant to Investor without restriction by the volume limitations of Rule 144 under 144(e) of the Securities Act, or (iii) such time as all Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement.
(d) furnish to the closing of an acquisition of Placement Agent and to the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (normal blue sky clearance in states specified in writing by the "Registration Period"). In the event Investor, provided, however, that Form S-3 is unavailable for such registration, the Company shall use such other form as not be required to qualify to do business or consent to service of process in any jurisdiction in which it is available for such a registration. For purposes not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 1.1(a)7.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors, "Grace Period" promptly after it shall mean a suspension under Section 1.2(breceive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation or threat of any proceeding for that purpose; and it will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) and 1.2(cthe 90th day after such SEC notification, or (ii) in excess 120 days after the initial filing of sixty (60) days in the aggregate in any twelve month period of time;Registration Statement with the SEC.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the EmployeesInvestors, prepare and file with the SEC as soon as practicable following such request SEC, within ten (10) business days after the Closing Date, a registration statement on Form S-3 (the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, ) to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") Shares by the Trust Investors from time to time on through the automated quotation system of the Nasdaq Stock Market or in privately-negotiated transactions, and provide the Investor at least two (2) business days to review and provide comments to the Registration Statement before filing with the SEC;
(b) use all reasonable efforts its best efforts, subject to receipt of necessary information from the Investors, to cause such the Registration Statement to be become effective as soon as practicable, but in no event later than sixty (60) days after the Registration Statement is filed by the Company. If the Registration Statement has not been declared effective by the SEC on or before the date that is 90 days after the Closing Date (the "Required Effective Date"), the Company shall, on the 91st day and each 30th day thereafter, make a payment to the Investor as promptly as possible partial compensation for such delay (the "Late Registration Payments") equal to 1% of the purchase price paid for the Shares purchased by the Investor and not previously sold by the Investor (but in no event to exceed 8% in the aggregate) until the Registration Statement is declared effective by the SEC. The Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid to the Investor by wire transfer or check within five business days after filing and to remain continuously effective until the earlier of (i) the later end of each 30 day period following the Required Effective Date or (ii) the effective date of the third Registration Statement;
(c) use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to each Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace PeriodClosing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act or (iii) such time as all Registrable Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement, and to notify each Investor promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective by the SEC;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses (including supplemental prospectuses) and preliminary versions of the Prospectus filed with the Securities Exchange Commission ("Preliminary Prospectuses") in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that unless waived by the Company in writing, the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the Transfer receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may immediately be sold during applicable in connection with any 90 day period use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph (a) through (e) of this Section 6.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and it will promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued. With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144 under the Securities Act, 144(k) or any other rule of similar effect or (iiiB) the closing of an acquisition such date as all of the Registrable Securities Investor's Shares shall have been resold; (ii) file with the SEC in exchange for publicly traded stock (i.e., stock that has been registered a timely manner all reports and other documents required of the Company under the Securities Act for issuance and under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor and is listed on of any rule or regulation of the SEC that permits the selling of any such Shares without registration. It shall be a national securities exchange or Nasdaq) condition precedent to the obligations of another entity (the "Registration Period"). In Company to take any action pursuant to this Section 6.1 that the event that Form S-3 is unavailable for Investor shall furnish to the Company such registrationinformation regarding itself, the Shares to be sold by Investor, and the intended method of disposition of such securities as shall be required to effect the registration of the Shares. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall use such other form as is available for such a registration. For purposes not relieve the Company of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;obligations it has hereunder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Endocardial Solutions Inc)
Registration Procedures and Expenses. The Company hereby agrees that it shall:: ------------------------------------
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject Subject to receipt of necessary information in writing from the Trust and Investor, the Employees, Company shall prepare and file with the SEC SEC, as soon as practicable following such request practicable, but in no event later than February 4, 2002 (the "Filing Date"), a ----------- registration statement on Form S-3 (the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, ) to enable the ---------------------- resale of the Shares (together with any shares of Company Common Stock subject capital stock issued or issuable from time to time, with any adjustments, in exchange for or otherwise with respect to the Transfer (the "Registrable Shares") by the Trust Investor from time to time through Amex (or the facilities of any national securities exchange on which the Nasdaq Company's Common Stock is then traded) or in privately-negotiated transactions. If Form S-3 is not available at that time, then the Company will file a Registration Statement on such form as is then available to effect a registration of the Shares, subject to the consent of the Investor, which consent shall not be unreasonably withheld. The Company shall not, and use all reasonable efforts will not agree to, allow the holders of any securities of the Company to include any of their securities in any Registration Statement under this Section 5.1 without the consent of the holders of a majority in interest of the Shares. In addition, the Company shall not register, or agree to register, any of its securities for the account of stockholders other than the holders of the Shares, without the consent of the holders of a majority in interest of the Shares, until the Registration Statement with respect to the Shares has been declared effective.
(b) Use its best efforts, subject to receipt of necessary information from the Investor, to cause such the Registration Statement to be declared effective by the SEC as soon as practicable after filing, and in any event no later than the sixtieth (60th) day after the Closing Date (the "Required Effective Date"). However, so long as the Company filed the ----------------------- Registration Statement by the Filing Date, if the Registration Statement receives SEC review, then the Required Effective Date will be the ninetieth (90th) day after the Closing Date. The Company will promptly respond to all comments received from the staff of the SEC. If the Company receives notification from the SEC that the Registration Statement will receive no action or review from the SEC, then the Company will, subject to its rights under Section 5.2, use its best efforts to cause the Registration Statement to become effective within five (5) business days after such SEC notification.
(c) Use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus used in connection therewith as possible after filing may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to remain continuously effective until the earlier Shares purchased hereunder, the earliest of (i) the later of the third second anniversary of the Transfer, plus, in each case, a number date of days equal to the number effectiveness of days, if any, the Registration Statement is suspended or not effective beyond with respect to the Grace PeriodShares, (ii) the date on which the Investor may sell all Shares then held by the Investor, without registration or without regard to any volume limitations by reason of Rule 144(k) of the Securities Act or (iii) such time as all Registrable Shares subject to the Transfer may immediately be purchased by such Investor in this Offering have been sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity Registration Statement (the "Registration Period"). In -------------------
(d) Furnish to the event Investor and to its legal counsel (i) promptly after each document is prepared and publicly distributed, filed with the SEC or received by the Company, one copy of any Registration Statement filed pursuant to this Agreement and any amendments thereto, each Preliminary Prospectus and final Prospectus and each amendment or supplement thereto; and each letter written by or on behalf of the Company to the SEC and each item of correspondence from the SEC or the staff of the SEC, in each case relating to such Registration Statement (other than any portion of any item thereof which contains information for which the Company has sought confidential treatment); and (ii) such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that Form S-3 is unavailable the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of the Securities Act and of such other securities or Blue Sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses. The Company will promptly notify the Investor by facsimile of the effectiveness of the Registration Statement and any post-effective amendment.
(e) Use its best efforts to (i) register and qualify the Shares covered by a Registration Statement under such other securities or Blue Sky laws of such jurisdictions as the Investor reasonably requests, (ii) prepare and file in those jurisdictions any amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain their effectiveness during the Registration Period, (iii) take any other actions necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take any other actions reasonably necessary or advisable to qualify the Shares for sale in such registrationjurisdictions. Notwithstanding the foregoing, the Company shall use is not required, in connection with such other form as is available obligations, to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 5.1, (B) subject itself to general taxation in any such jurisdiction, (C) file a registration. For purposes general consent to service of process in any such jurisdiction, (D) provide any undertakings that cause material expense or burden to the Company, or (E) make any change in its Certificate 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 stockholders.
(f) During the period when copies of the Prospectus are required to be delivered under the Securities Act or the Exchange Act, file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the rules and regulations promulgated thereunder.
(g) Bear all registration expenses in connection with the procedures in paragraphs (a) through (f) of this Section 1.1(a5.1 and the registration of the Shares pursuant to the Registration Statement (excluding underwriting, brokerage and other selling commissions and discounts and the fees and expenses of counsel(s) to the Investor).
(h) Advise the Investor, "Grace Period" promptly after it shall mean a suspension under Section 1.2(breceive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and it will promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(i) The Investor shall furnish to the Company such information regarding itself, the Shares to be sold by the Investor, and 1.2(cthe intended method of disposition of such Shares as shall be required to effect the registration of the Shares.
(j) The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period in excess which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of sixty (60i) the ninetieth (90th) day after such SEC notification, or (ii) one hundred twenty (120) days in after the aggregate in any twelve month period initial filing of time;the Registration Statement with the SEC. Notwithstanding the foregoing, the parties understand and agree that the offer and sale of Shares pursuant to the Registration Statement shall not be underwritten.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it GraphOn shall:
(a) if requested use its best efforts to file a Registration Statement with the SEC within ninety (90) days following the Closing Date to register the Registrable Shares on Form S-1 and it qualifies Rule 415 under applicable SEC rules) the Securities Act or on such other appropriate form that GraphOn may be permitted to undertake an S-3 registration use to register such Registrable Shares for resale from time to time by the Trust with regard to the Voting Securities subject to the Transfer Holders;
(including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A)b) use commercially reasonable efforts, subject to receipt of necessary information from the Trust and the EmployeesHolders, to cause any such Registration Statement filed pursuant to Section 1.2(a) above to become effective as promptly after filing of such Registration Statement as practicable;
(c) prepare and file with the SEC as soon as practicable following such request a registration statement on Form S-3 (the "Registration Statement"), which amendments and supplements to such Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to and the prospectus used in connection therewith as may be stated therein, or necessary to make keep such Registration Statement continuously effective until termination of such obligation as provided in Section 1.4, subject to GraphOn's right to suspend pursuant to Section 1.3;
(d) furnish to each Holder who received Registrable Shares (and to each underwriter, if any, of such Registrable Shares) such number of copies of prospectuses in conformity with the statement thereinrequirements of the Securities Act and such other documents as the Holders may reasonably request, in light order to facilitate the public sale or other disposition of all or any of the circumstances in which they were made, not misleading, to enable Registrable Shares by the Holders;
(e) file such documents as may be required of GraphOn for normal securities law clearance for the resale of the shares Registrable Shares in such states of Company Common Stock subject the United States as may be reasonably requested by each Holder; provided, however, that GraphOn shall not be required in connection with this paragraph "(e)" to qualify as a foreign corporation or execute a general consent to service of process in any jurisdiction; and
(f) advise each Holder who received Registrable Shares promptly:
(i) of the effectiveness of the Registration Statement or any post-effective amendments thereto;
(ii) of any request by the SEC for amendments to the Transfer Registration Statement or amendments to the prospectus or for additional information relating thereto;
(iii) of the "Registrable Shares") issuance by the Trust from time SEC of any stop order suspending the effectiveness of the Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Registrable Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes;
(iv) of the suspension by GraphOn of the use of the prospectus forming a part of the Registration Statement; and
(v) of the existence of any fact and the happening of any event that makes any statement of a material fact made in the Registration Statement, the prospectus and amendment or supplement thereto, or any document incorporated by reference therein, untrue, or that requires the making of any additions to time on or changes in the Nasdaq and Registration Statement or the prospectus in order to make the statements therein not misleading; and
(g) use all commercially reasonable efforts to cause such Registration Statement all Registrable Shares to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) the later of the third anniversary of the Transfer, plus, in listed on each case, a number of days equal to the number of dayssecurities exchange, if any, the Registration Statement is suspended or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing on which equity securities of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;GraphOn are then listed.
Appears in 1 contract
Sources: Holder Agreement (Graphon Corp/De)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested use best efforts to file a Resale Registration Statement (and it qualifies under applicable SEC rulesthe “Mandatory Registration Statement”) with the Commission on or before November 15, 2024 (the “Filing Date”) to undertake an S-3 registration by register the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee applicable Registrable Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, prepare and file with the SEC as soon as practicable following such request a registration statement on Form S-3 under the Securities Act (the "Registration Statement"providing for shelf registration of such Registrable Shares under Commission Rule 415), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer ;
(the "Registrable Shares"b) by the Trust from time to time on the Nasdaq and use all its commercially reasonable efforts to cause each Mandatory Registration Statement to be declared effective within 30 days following each Filing Date (or, in the event the staff of the Commission (the “Staff”) reviews and has written comments to any Mandatory Registration Statement, within 90 days following the receipt of such written comments) (the earlier of the foregoing or the applicable date set forth in Section 1.6(h), the “Effectiveness Date”), such efforts to include, without limiting the generality of the foregoing, preparing and filing with the Commission any financial statements or other information that is required to be filed prior to the effectiveness of such Mandatory Registration Statement;
(c) notwithstanding anything contained in this Agreement to the contrary, in the event that the Commission limits the amount of Registrable Shares or otherwise requires a reduction in the number of Registrable Shares that may be included and sold by the Purchasers in a Mandatory Registration Statement (in each case, subject to Section 6.3), then the Company shall prepare and file (i) within 20 business days of the first date or time that such excluded Registrable Shares may then be included in a Resale Registration Statement if the Commission shall have notified the Company that certain Registrable Shares were not eligible for inclusion in such Resale Registration Statement or (ii) in all other cases, within 30 days following the date that the Company becomes aware that such additional Resale Registration Statement is required (the “Additional Filing Date”), a Resale Registration Statement (any such Resale Registration Statement registering such excluded Registrable Shares, an “Additional Registration Statement” and, together with the Mandatory Registration Statement, a “Resale Registration Statement”) to register any Registrable Shares that have been excluded (or, if applicable, the maximum number of such excluded Registrable Shares that the Company is permitted to register for resale on such Additional Registration Statement consistent with Commission guidance), if any, from being registered on the Mandatory Registration Statement;
(d) use its commercially reasonable efforts to cause any such Additional Registration Statement to be declared effective as promptly as possible practicable following the Additional Filing Date, such efforts to include, without limiting the generality of the foregoing, preparing and filing with the Commission any financial statements or other information that is required to be filed prior to the effectiveness of any such Additional Registration Statement;
(e) prepare and file with the Commission such amendments and supplements to such Resale Registration Statements and the prospectus used in connection therewith as may be necessary to keep such Resale Registration Statements continuously effective and free from any material misstatement or omission to state a material fact therein until termination of such obligation as provided in Section 6.5 below, subject to the Company’s right to suspend pursuant to Section 6.4;
(f) furnish to the Purchasers such number of copies of prospectuses in conformity with the requirements of the Securities Act and such other documents as the Purchasers may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Shares by the Purchasers;
(g) file such documents as may be required of the Company for normal securities law clearance for the resale of the Registrable Shares in such states of the United States as may be reasonably requested by the Purchasers and use its commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain effectiveness of the Resale Registration Statements; provided, however, that the Company shall not be required in connection with this Section 1.6(g) to qualify as a foreign corporation or execute a general consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(h) upon notification by the Commission that a Resale Registration Statement will not be reviewed or is not subject to further review by the Commission, the Company shall within five business days following the date of such notification request acceleration of such Resale Registration Statement (with the requested effectiveness date to be not more than two business days later);
(i) upon notification by the Commission that that a Resale Registration Statement has been declared effective by the Commission, the Company shall file the final prospectus under Rule 424 of the Securities Act (“Rule 424”) within the applicable time period prescribed by Rule 424;
(j) advise the Purchasers promptly:
(i) of the effectiveness of a Resale Registration Statement or any post-effective amendments thereto;
(ii) of any request by the Commission for amendments to a Resale Registration Statement or amendments to the prospectus or for additional information relating thereto;
(iii) of the issuance by the Commission of any stop order suspending the effectiveness of a Resale Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Registrable Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes; and
(iv) of the existence of any fact and the happening of any event that makes any statement of a material fact made in a Resale Registration Statement, the prospectus and amendment or supplement thereto, or any document incorporated by reference therein, untrue, or that requires the making of any additions to or changes in a Resale Registration Statement or the prospectus in order to make the statements therein not misleading;
(k) cause all Registrable Shares to be listed on each securities exchange, if any, on which equity securities by the Company are then listed;
(l) bear all expenses in connection with the procedures in paragraphs (a) through (l) of this Section 6.2 and the registration of the Registrable Shares on such Resale Registration Statement and the satisfaction of the blue sky laws of such states; and
(m) if (i) the initial Resale Registration Statement covering the Registrable Shares is not filed with the Commission on or prior to the Filing Date, (ii) the initial Resale Registration Statement or any other Resale 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 applicable Effectiveness Date, (iii) after filing and its Effectiveness Date, (A) such Registration Statement ceases for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Resale Registration Statement), to remain continuously effective as to all Registrable Shares for which it is required to be effective, or (B) the Purchasers are not permitted to utilize the prospectus therein to resell such Registrable Shares or (iv) after the Filing Date, and only in the event a Resale Registration Statement is not effective or available to sell all Registrable Shares, 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), as a result of which the Purchasers who are not affiliates are unable to sell Registrable Shares without restriction under Rule 144 (any such failure or breach in clauses (i) through (iv) above being referred to as an “Event,” and, for purposes of clauses (i), (ii), (iii) or (iv), the date on which such Event occurs, being referred to as an “Event Date”), then, in addition to any other rights the Purchasers may have hereunder or under applicable law on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the earlier applicable Event is cured, the Company will pay to each Purchaser an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 1% of the aggregate purchase price paid by such Purchaser pursuant to this Agreement for any Registrable Shares held by such Purchaser on the Event Date. 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. Such payments shall constitute the Purchasers’ exclusive monetary remedy for such events, but shall not affect the right of the Purchasers to seek injunctive relief. Such payments shall be made to each Purchaser in cash no later than five (5) Business Days after the date payable (such applicable date, the “Payment Date”). Interest shall accrue on the amount of Liquidated Damages that are not be paid by the Payment Date at the rate of 1% per month, accruing daily from the date such Liquidated Damages are due until such amount, plus interest thereon, is paid in full. Notwithstanding any other provision herein, with respect to a Purchaser (i) the later Filing Date and each Effectiveness Date for a Resale Registration Statement shall be extended, without default by or Liquidated Damages payable by the Company to such holder hereunder if the Company’s failure to make such filing or obtain such effectiveness results from the failure of such Purchaser to timely provide the Company with information requested by the Company and necessary to complete a Resale Registration Statement in accordance with the requirements of the third anniversary Securities Act (in which case any such deadline would be extended with respect to all Registrable Shares held by such Purchaser until such time as the Purchaser provides such requested information), it being understood that the failure of the Transfer, plus, in each case, a number of days equal such Purchaser to timely provide such information to the number Company shall not affect the rights of daysother Purchasers herein, if any, the Registration Statement is suspended or not effective beyond the Grace Period, and (ii) such time as all Registrable Shares subject in no event shall the aggregate amount of Liquidated Damages (or interest thereon) paid under this Agreement to any Purchaser exceed, in the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under aggregate, 5% of the Securities Act, or (iii) the closing of an acquisition aggregate purchase price of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered Shares purchased by such Purchaser under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Elicio Therapeutics, Inc.)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested as soon as reasonably practicable, but in no event later than 30 days following the Closing Date, prepare and file with the Commission a Registration Statement relating to the sale of the Shares and the Warrant Shares (and it qualifies under applicable SEC rulesany securities issued as a dividend or other distribution with respect to, or in replacement of, the Shares or the Warrant Shares) to undertake an S-3 registration by the Trust with regard Purchaser and the Other Purchasers from time to time on the Voting Securities subject to Nasdaq National Market, or the Transfer facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions;
(including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A)b) use its best efforts, subject to receipt of necessary information from the Trust Purchasers, to cause the Commission to declare the Registration Statement effective within 90 days after the Closing Date;
(c) give written notice immediately to the Purchaser that the Commission has declared the Registration Statement effective, and the Employeesin any event, within one (1) business day of such declaration;
(d) use its best efforts to promptly prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the prospectus used in connection therewith as soon may be necessary to keep the Registration Statement effective until such time as practicable following such request a registration statement on Form S-3 the Shares and the Warrant Shares become eligible for resale by non-affiliates pursuant to Rule 144(k) under the Securities Act (the "“Effectiveness Period”);
(e) furnish to the Purchaser with respect to the Shares and the Warrant Shares registered under the Registration Statement (and to each underwriter, if any, of the Shares or Warrant Shares) such number of copies of prospectuses and such other documents as the Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares and Warrant Shares by the Purchaser;
(f) file documents required of the Company for normal Blue Sky clearance in states specified by the Purchaser; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(g) bear all expenses in connection with the procedures in paragraphs (a) through (f) of this Section and the registration of the Shares and the Warrant Shares pursuant to the Registration Statement"), which including any fees and expenses of the transfer agent for the Common Stock, other than fees and expenses, if any, of counsel or other advisers to the Purchaser or the Other Purchasers or underwriting discounts, brokerage fees and commissions incurred by the Purchaser or the Other Purchasers, if any;
(h) file a Form D with respect to the Securities as required under Regulation D and to provide a copy thereof to the Purchaser promptly after filing;
(i) issue a press release describing the transactions contemplated by this Agreement no later than 9:29 a.m. (EST) on December 21, 2004 and make all required filings with the Commission under the Exchange Act with respect to the transactions contemplated by this Agreement;
(j) promptly notify the Purchaser (i) upon discovery that, or upon the occurrence of any event as a result of which, the prospectus forming a part of the Registration Statement shall not contain any Statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of proceedings for that purpose, (iii) of any (A) amendments to the Registration Statement or any document incorporated or deemed to be incorporated by reference in the Registration Statement, or (B) supplements to the prospectus forming a part of the Registration Statement, or (C) additional information, or (iv) of the receipt by the Company of any notification with respect to the suspension of the registration, qualification or exemption from registration or qualification of any of the Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose, and at the request of the Purchaser promptly prepare and file an amendment to the Registration Statement or a supplement to the prospectus as the Company may deem necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statement statements therein, in the light of the circumstances in under which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject ; and make available to the Transfer (Purchaser upon its request a reasonable number of copies of such supplement to, or amendment of, such Registration Statement and prospectus, and, in the "Registrable Shares") by the Trust from time to time on the Nasdaq and event of a stop order, use all its commercially reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until obtain the earlier withdrawal of (i) any order suspending the later effectiveness of the third anniversary Registration Statement, or the lifting of any suspension of the Transferqualification (or exemption from qualification) of any of the Securities for sale in any jurisdiction; and
(k) make available, plus, in each case, a number of days equal to the number of days, if any, while the Registration Statement is suspended or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a)resale, "Grace Period" shall mean a suspension under Section 1.2(b) its Chief Executive Officer and 1.2(c) Chief Financial Officer for questions regarding information that the Purchaser may reasonably request in excess of sixty (60) days in the aggregate in order to fulfill any twelve month period of time;due diligence obligation on its part.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, The Company shall prepare and file with the SEC Commission, as soon promptly as reasonably practicable following such request Closing, a registration statement on Form S-3 F-3 (the "Registration Statement"or any successor to Form F-3), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable covering the resale of the shares of Company Common Stock subject to the Transfer Registrable Securities (as defined below) (the "Registrable Shares"“Resale F-3 Registration Statement”) by the Trust from time to time on the Nasdaq and shall use all its commercially reasonable efforts to cause such Resale F-3 Registration Statement to be declared effective under the Securities Act by the Commission as promptly soon as possible reasonably practicable thereafter and in any event no later than 180 days after filing and to remain continuously effective until the earlier Closing Date. For purposes of this Agreement, the term “Registrable Securities” shall mean (i) the later of the third anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace PeriodWarrants, (ii) such time as all Registrable Shares subject to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or Warrant Shares; and (iii) the closing of an acquisition any Common Stock of the Registrable Securities Company issued as (or issuable upon the conversion or exercise of any warrant, right or other security which is issued as) a dividend or other distribution with respect to, or in exchange for publicly traded stock (i.e.or in replacement of, stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange any Warrants or Nasdaq) of another entity (the "Registration Period")Warrant Shares. In the event that Form S-3 F-3 (or any successor form) is or becomes unavailable for such registrationto register the resale of the Registrable Securities at any time prior to the expiration of the Purchasers’ registration rights pursuant to this Article V, the Company shall use such other form prepare and file with the Commission, as is available for such promptly as reasonably practicable following the Closing, a registration. For purposes of this Section 1.1(aregistration statement on Form F-1 (or any successor to Form F-1), "Grace Period" shall mean a suspension under Section 1.2(bcovering the resale of the Registrable Securities (the “Resale F-1 Registration Statement” and collectively with the Resale F-3 Registration Statement, the “Resale Registration Statement”) and 1.2(c) in excess of sixty (60) days in shall use its commercially reasonable efforts to cause such Resale F-1 Registration Statement to be declared effective under the aggregate Securities Act by the Commission as soon as reasonably practicable thereafter and in any twelve month period event no later than 180 days after the Closing Date. If the Company is not initially eligible to use Form F-3, and the Company subsequently becomes eligible to use Form F-3 during the Effectiveness Period (as defined below), the Company shall file, as promptly as reasonably practicable, a new Resale F-3 Registration Statement covering the resale of time;the Registrable Securities and replace the Resale F-1 Registration Statement with the new Resale F-3 Registration Statement upon the effectiveness of the new Resale F-3 Registration Statement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Tanzanian Gold Corp)
Registration Procedures and Expenses. The Company hereby agrees that it shallwill:
1.1.1 subject to receipt of necessary information from each Purchaser, including all information set forth in Schedule 1 attached hereto, use commercially reasonable efforts to prepare and file with the U.S. Securities and Exchange Commission (athe “SEC”), within sixty (60) if requested days after the Closing (and it qualifies under applicable SEC rulesthe “Filing Date Deadline”), a registration statement (the “Registration Statement”) on Form S-1 (or such appropriate form as is available to the Company) to undertake an S-3 registration enable the resale of all of the shares of Common Stock issuable upon conversion of the Notes and exercise of the Warrants by the Trust with regard Purchasers and the placement agent under the Purchase Agreement (collectively, the “Registrable Shares”) on a delayed or continuous basis under Rule 415 of the Securities Act until the earlier of: (1) the date on which all such shares have been resold or otherwise transferred pursuant to the Voting Registration Statement; (2) the date on which all such shares are transferred in compliance with Rule 144 under the Securities Act or may be sold or transferred pursuant to Rule 144 under the Securities Act (or any other similar provisions then in force) without any volume or manner of sale restrictions thereunder (the “Rule 144 Eligibility Date”); or (3) the date on which all such shares cease to be outstanding (whether as a result of redemption, repurchase and cancellation or otherwise); provided, however, that, with respect to the Registration Statement to be filed pursuant to this Section 1.1.1 (the “Initial Registration Statement”) and any other registration Statement, the Company will not be liable to the Purchasers or placement agent for any liquidated damages for any Effectiveness Failure pursuant to Section 1.5 if (A) such Effectiveness Failure is the result of any delay in effectiveness of the Registration Statement relating to the SEC’s not permitting the registration under Rule 415 of the Securities Act of any number of shares of Common Stock in excess of thirty percent (30%) of the Company’s public float and (B) the Company is using its best efforts to promptly file an amendment to the Registration Statement which would enable the registration of up to thirty percent (30%) of the Company’s public float. Prior to the filing of the Registration Statement, the Company will furnish to each purchaser a copy of the “Selling Shareholder” section of the Registration Statement and to one counsel for the Purchasers (as designated by the Collateral Agent) a copy of the Registration Statement, which documents will be subject to their review. If the Transfer Company has not received any comments thereto within three (including3) days of delivery, the Employee Shares should the Employees execute a joinder agreeing to then such documents will be bound deemed approved by the terms and provisions of the Exhibit A)relevant parties;
1.1.2 use commercially reasonable efforts, subject to receipt of necessary information from each Purchaser, including the Trust information set forth in Schedule 1 attached hereto, to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof but within 90 days after the date on which the Company files the Registration Statement with the SEC (120 days if the Registration Statement is reviewed by the SEC) (the “Effective Date Deadline”); provided, however, that if the Company is notified by the SEC that the Registration Statement will not be reviewed or is no longer subject to further review and comments, the Employees, Effective Date Deadline will be the fifth trading day on the American Stock Exchange following the date on which the Company is so notified subject to any reasonable delay which Issuer and Issuer’s counsel in their sole discretion deem necessary in connection with the disclosure of material nonpublic information;
1.1.3 use commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus, in the form first filed with the Commission pursuant to Rule 424(b) of the Regulations, or filed as soon as practicable following such request a registration statement on Form S-3 part of the Registration Statement at the time of effectiveness if no Rule 424(b) filing is required (the "Registration Statement"), which “Prospectus”) used in connection therewith and take all such other actions as may be necessary to keep the Registration Statement shall current and effective for a period (the “Registration Period”) not contain any untrue statement of material fact or omit to state a material fact required to be stated thereinexceeding, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject with respect to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until Purchasers’ Common Stock, the earlier of (i) the later of the third second anniversary of the Transfer, plus, in each case, a number Closing Date (but with respect to Common Stock that is issuable upon exercise of days equal to the number of days, if anyWarrants, the Registration Statement is suspended or not effective beyond foregoing date will be the Grace Periodsecond anniversary of the date the related Warrant was exercised), (ii) the Rule 144 Eligibility Date, and (iii) such time as all Registrable Shares subject to Common Stock held by the Transfer may immediately be Purchasers have been sold during any 90 day period (A) pursuant to Rule 144 under the Securities Acta registration statement, (B) to or through a broker or dealer or underwriter in a public distribution or a public securities transaction, or (iiiC) in a transaction exempt from the closing of an acquisition registration and prospectus delivery requirements of the Registrable Securities in exchange for publicly traded stock (i.e.Act under Section 4(1) thereof so that all transfer restrictions and restrictive legends with respect thereto, stock that has been if any, are removed upon the consummation of such sale;
1.1.4 promptly furnish to each Purchaser with respect to the Common Stock registered under the Securities Act Registration Statement such reasonable number of copies of the Prospectus, including any supplements to or amendments of the Prospectus, in order to facilitate the public sale or other disposition of all or any of the Common Stock by the Purchasers;
1.1.5 promptly take such action as may be necessary to qualify, or obtain, an exemption for the Common Stock under such of the state securities laws of United States jurisdictions as will be necessary to qualify, or obtain an exemption for, the sale of the Common Stock in states specified in writing by the Purchasers; but the Company will not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
1.1.6 bear all expenses actually incurred in connection with the registration of the Common Stock pursuant to the Registration Statement, regardless of whether a Registration Statement becomes effective, including without limitation: (i) all registration and filing fees and expenses (including filings made with the NASD); (ii) fees and expenses of compliance with federal securities and state “blue sky” or securities laws; (iii) expenses of printing (including printing certificates for the Common Stock and Prospectuses); and (iv) all fees and disbursements of counsel of the Company and independent certified public accountants of the Company; but each Purchaser will be responsible for paying the fees and disbursements for such Purchaser’s respective counsel (with the exception of those reasonable and necessary fees and expenses actually incurred by one counsel for the Purchaser’s in connection with the review of the Registration Statement up to a total of $2,500), the underwriting commissions or brokerage fees, and taxes of any kind (including, without limitation, transfer taxes) applicable to any disposition, sale or transfer of such Purchaser’s Common Stock, and the Company will, in any event, bear its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties); and
1.1.7 advise the Purchasers, within two (2) business days by e-mail, fax or other type of communication, and, if requested by such person, confirm such advice in writing: (i) after it will receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation or threat of any proceeding for that purpose, or any other order issued by any state securities commission or other regulatory authority suspending the qualification or exemption from qualification of such Common Stock under state securities or “blue sky” laws; and it will promptly use its commercially reasonable efforts to prevent the issuance of any stop order or other order or to obtain its withdrawal at the earliest possible moment if such Investor stop order or other order should be issued; and is listed on a national securities exchange (ii) when the Prospectus or Nasdaq) any supplements to or amendments of another entity (the "Prospectus have been filed, and, with respect to the Registration Period"). Statement or any post-effective amendment thereto, when the same has become effective.
1.1.8 In the event that Form S-3 is unavailable of an underwritten offering of Registrable (an “Underwritten Offering”), the Company and each participating Purchaser (each a “Participating Holder”), will negotiate in good faith and enter into reasonable and customary agreements (including underwriting agreements in reasonable and customary form, which may include, in the case of an underwritten offering on a firm commitment basis, customary “lock-up” obligations) and take such other actions (including using its best efforts to make such road show presentations (but in no event will the Company be required to incur travel and lodging expenses in excess of $20,000 in connection with all road shows attended by Company management in any twelve month period) and otherwise engage in such reasonable marketing support in connection with any such underwritten offering, including the obligation to make its executive officers available for such purpose if so requested by the managing underwriter for such offering) as are reasonably requested by the managing underwriter in order to expedite or facilitate the sale of such Registrable Shares. The representations, warranties and covenants of the Company in any underwriting agreement which are made to or for the benefit of any underwriters, to the extent applicable, will also be made to and for the benefit of the Participating Holders. No Participating Holder will be required to make any representations or warranties in the underwriting agreement except, if applicable, with respect to such Participating Holder’s organization, good standing, authority, title to Registrable Shares, lack of conflict of such sale with such Participating Holder’s material agreements and organizational documents, and, with respect to written information relating to such Participating Holder, that such Participating Holder has furnished in writing expressly for inclusion in such Registration Statement.
1.1.8.1 The Company will make available for inspection by each Participating Holder, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by such Participating Holder or any such underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company and any of its subsidiaries (collectively, the “Records”) as will be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the officers, directors and employees of the Company to supply all information reasonably requested by any such Inspector in connection with such registration.
1.1.8.2 The Company will, in connection with any registration of an Underwritten Offering of Registrable Shares hereunder, use best efforts to furnish to each Participating Holder and to the managing underwriter, if any, a signed counterpart, addressed to such Participating Holder and the managing underwriter, if any, of (a) an opinion or opinions of counsel to the Company and (b) a comfort letter or comfort letters from the Company’s independent public accountants pursuant to Statement on Auditing Standards No. 72 (or any successor thereto), each in customary form and covering such matters of the type customarily covered by opinions or comfort letters, as the case may be, as each such Participating Holder and the managing underwriter, if any, reasonably requests.
1.1.9 In the event the SEC does not permit the Issuer to register all of the shares on the Initial Registration Statement, the Company shall use such other form its best efforts to file subsequent Registration Statements (each, a “Subsequent Registration Statement”) to register the Registrable Shares that were not registered in the Initial Registration Statement as is available for such promptly as possible and in a registrationmanner permitted by the SEC. For purposes of this Section 1.1(a)1.5, "Grace Period" shall mean a suspension under Section 1.2(b“Filing Date Deadline” means with respect to each Subsequent Registration Statement filed pursuant hereto, the later of (i) and 1.2(c) in excess of sixty (60) days after the date when 75% of the Registrable Shares that were included in the aggregate Initial Registration Statement (or any subsequent Registration Statement) have been sold and (ii) six (6) months following the Effective Date of the Initial Registration Statement or any Subsequent Registration Statement, as applicable, or such earlier date as permitted by the SEC. For purposes of this Section 1.5, “Effective Date Deadline” means with respect to each Subsequent Registration Statement filed pursuant to this Agreement, the earlier of (A) the ninetieth (90th) day following the filing date of such Registration Statement (or in the event such Registration Statement is reviewed by the SEC, the one hundred twentieth (120th) day following such filing date) or (B) the date which is the fifth trading day on the American Stock Exchange following the date on which the Company is so notified subject to any twelve month period reasonable delay which Issuer and Issuer’s counsel in their sole discretion deem necessary in connection with the disclosure of time;material nonpublic information.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shall:
i. Subject to receipt of necessary information from the Investors, including the Registration Statement Questionnaire, use best efforts to prepare and file with the SEC, within 30 days after the Closing Date, a registration statement (athe “Registration Statement”) if requested (and it qualifies under applicable SEC rules) on Form S-3 to undertake an S-3 registration enable the resale of the Shares by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute Investors on a joinder agreeing to be bound by the terms and provisions delayed or continuous basis under Rule 415 of the Exhibit A)Securities Act.
ii. use best efforts, subject to receipt of necessary information from the Trust and Investors, including the EmployeesRegistration Statement Questionnaire, to cause the Registration Statement to become effective within 90 days of the Closing Date;
iii. use best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus (as soon defined in Section 5.4 below) used in connection therewith and take all such other actions as practicable following such request may be necessary to keep the Registration Statement current and effective for a registration statement on Form S-3 period (the "“Registration Statement")Period”) not exceeding, which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject with respect to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until , the earlier of (i) the later date on which all Shares then held by the Investor may be sold or transferred in compliance with Rule 144 under the Securities Act or may be sold or transferred by a person who is not an affiliate of the third anniversary Company pursuant to Rule 144 of the TransferSecurities Act (or any other similar provisions then in force) without any volume or manner of sale restrictions thereunder, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject to held by the Transfer may immediately be Investor have been sold during any 90 day period (A) pursuant to Rule 144 under the Securities Acta registration statement, (B) to or through a broker or dealer or underwriter in a public distribution or a public securities transaction, or (iiiC) in a transaction exempt from the closing of an acquisition registration and prospectus delivery requirements of the Registrable Securities in exchange for publicly traded stock (i.e.Act under Section 4(1) thereof so that all transfer restrictions and restrictive legends with respect thereto, stock that has been if any, are removed upon the consummation of such sale;
iv. promptly furnish to the Investor with respect to the Shares registered under the Securities Act Registration Statement such reasonable number of copies of the Registration Statement and Prospectus, including any supplements to or amendments of the Prospectus or Registration Statement, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor;
v. promptly take such action as may be necessary to qualify, or obtain, an exemption for issuance the Shares under such of the state securities laws of United States jurisdictions as shall be necessary to such Investor and is listed on a national securities exchange qualify, or Nasdaq) obtain an exemption for, the sale of another entity (the "Registration Period"). In Shares in states specified in writing by the event Investor; provided, however, that Form S-3 is unavailable for such registration, the Company shall use such other form as not be required to qualify to do business or consent to service of process in any jurisdiction in which it is available for such a registrationnot now so qualified or has not so consented;
vi. For purposes bear all expenses in connection with the procedures in paragraphs (a) through (e) and (g) of this Section 1.1(a5.1 and the registration of the Shares pursuant to the Registration Statement, regardless of whether a Registration Statement becomes effective, including without limitation: (i) all registration and filing fees and expenses (including filings made with the AMEX); (ii) fees and expenses of compliance with federal securities and state “blue sky” or securities laws; (iii) expenses of printing (including printing certificates for the Shares and Prospectuses); (iv) all application and filing fees in connection with listing the Shares on the AMEX; and (v) all fees and disbursements of counsel of the Company and independent certified public accountants of the Company; provided, "Grace Period" however, that the Investor shall mean a suspension under Section 1.2(bbe responsible for paying the underwriting commissions or brokerage fees, and taxes of any kind (including, without limitation, transfer taxes) and 1.2(c) in excess applicable to any disposition, sale or transfer of sixty (60) days in the aggregate Investor’s Shares. The Company shall, in any twelve month period event, bear its internal expenses (including, without limitation, all salaries and expenses of time;its officers and employees performing legal or accounting duties); and
vii. advise the Investors, within two business days by e-mail, fax or other type of communication, and, if requested by such person, confirm such advice in writing: (i) after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation or threat of any proceeding for that purpose, or any other order issued by any state securities commission or other regulatory authority suspending the qualification or exemption from qualification of such Shares under state securities or “blue sky” laws; and it will promptly use its reasonable best efforts to prevent the issuance of any stop order or other order or to obtain its withdrawal at the earliest possible moment if such stop order or other order should be issued; and (ii) when the Prospectus or any supplements to or amendments of the Prospectus have been filed, and, with respect to the Registration Statement or any post-effective amendment thereto, when the same has become effective.
Appears in 1 contract
Sources: Securities Purchase Agreement (Cybex International Inc)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested as soon as practicable, but in no event later than ten (10) business days following the Closing Date, prepare and it qualifies under applicable SEC rules) file with the Commission the Registration Statement on Form S-3 relating to undertake an S-3 registration the resale of the Shares by the Trust with regard Purchaser and the Other Purchasers from time to time on AMEX or the facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions;
(b) provide a draft copy of the Registration Statement to the Voting Securities subject Purchaser for its review and comment prior to filing the Transfer Registration Statement with the Commission;
(including, c) notify the Employee Shares should Purchaser promptly upon being informed whether the Employees execute staff or the Commission intends to review or not review the Registration Statement;
(d) file a joinder agreeing to be bound by the terms and provisions request for acceleration of the Exhibit A)Registration Statement with the Commission within three (3) business days after the date the Company receives notice from the staff of the Commission that the Commission does not intend to review the Registration Statement or has completed such review;
(e) use its best efforts, subject to receipt of necessary information from the Trust Purchasers, to cause the Commission to declare the Registration Statement effective as soon as reasonably practicable and in any event within sixty (60) days after the Employees, Closing Date (the “Effectiveness Target Date”);
(f) promptly prepare and file with the SEC as soon as practicable following Commission such request a registration statement on Form S-3 (amendments and supplements to the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to and the prospectus used in connection therewith as may be stated therein, or necessary to make keep the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) two years after the later effective date of the third anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace PeriodStatement, (ii) such time as all Registrable of the Shares subject have been sold pursuant to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, Registration Statement or (iii) the closing of an acquisition date on which all of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered Shares may be resold by the Purchasers without registration by reason of Rule 144(k) under the Securities Act or any other rule of similar effect;
(g) so long as the Registration Statement is effective covering the resale of the Shares owned by the Purchaser, furnish to the Purchaser with respect to the Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares) such number of copies of prospectuses and such other documents as the Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Purchaser;
(h) file documents required of the Company for issuance normal Blue Sky clearance in states specified in writing by the Purchaser; provided, however, that the Company shall not be required to such Investor and qualify to do business or consent to service of process in any jurisdiction in which it is listed on a national securities exchange not now so qualified or Nasdaqhas not so consented;
(i) bear all expenses in connection with the procedures in paragraphs (a) through (h) of another entity this Section 7.1 and the registration of the Shares pursuant to the Registration Statement, other than fees and expenses, if any, of counsel or other advisers to the Purchaser or the Other Purchasers or underwriting discounts, brokerage fees and commissions incurred by the Purchaser or the Other Purchasers, if any, in connection with the offering of the Shares pursuant to the Registration Statement;
(j) file a Form D with respect to the "Shares as required under Regulation D and to provide a copy thereof to the Purchaser promptly after filing;
(k) issue a press release or a Current Report on Form 8-K as may be required by the Exchange Act describing the transactions contemplated by this Agreement on or prior to the Closing Date; and
(l) make available, while the Registration Period")Statement is effective and available for resale, its Chief Executive Officer, Chief Financial Officer or other appropriate representatives for questions regarding information which the Purchaser may reasonably request in order to fulfill any due diligence obligation on its part. In If the event that Form S-3 is unavailable for such registrationCommission does not declare the Registration Statement effective by the Effectiveness Target Date, the Company shall use such other form become obligated to pay to the Purchaser an amount in cash, as liquidated damages and not as a penalty, equivalent to 1% of the aggregate purchase price paid by the Purchaser for any Shares then held by the Purchaser or its affiliates for each full month that effectiveness is available delayed beyond the Effectiveness Target Date (pro-rated on a daily basis for such a registrationpartial months). For purposes of The Company shall pay in full any liquidated damages pursuant to this Section 1.1(a)7.1 within 30 days after the date on which the Company becomes obligated to pay such damages. Notwithstanding the foregoing provisions, "Grace Period" in no event shall mean a suspension under Section 1.2(b) and 1.2(c) the Company be obligated to pay liquidated damages in excess an aggregate amount that exceeds 10% of sixty (60) days the purchase price paid by the Purchaser for its Shares pursuant to this Agreement. The Company understands that the Purchaser disclaims being an underwriter of the Shares, but the Purchaser being deemed an underwriter shall not relieve the Company of any obligations it has hereunder. A draft of the proposed form of the Registration Statement is included in the aggregate in any twelve month period of time;Private Placement Memorandum and a questionnaire related thereto to be completed by the Purchaser is attached hereto as Appendix I.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it is obligated to do the following: The Company shall, within thirty (30) days immediately following the Closing Date, such actual date being referred to as the "Registration Date":
(a) if requested (prepare and it qualifies file with the SEC a registration statement on Form S-3 in order to register with the SEC under applicable SEC rules) to undertake an S-3 registration the Securities Act a sale by the Trust with regard Purchasers on a delayed or continuous basis pursuant to Rule 415 under the Securities Act any or all of the Registrable Shares through the automated quotation system of the Nasdaq National Market System or the facilities of any national securities exchange on which the Company's Common Stock is then traded, or in privately-negotiated transactions (a "Registration Statement") (notwithstanding anything to the Voting Securities subject to contrary expressed or implied herein, if a registration statement on Form S-3, or any substitute form, is not then available for registration of the Transfer (includingRegistrable Shares, the Employee Company shall be obligated instead to prepare and file with the SEC a registration statement on Form S-1 in order to register the Registrable Shares should under the Employees execute Securities Act and such registration statement will be a joinder agreeing to be bound by "Registration Statement" for the terms and provisions purposes of the Exhibit Athis Agreement), ;
(b) subject to receipt of necessary information from the Trust and the EmployeesPurchasers, prepare and file with the SEC as soon as practicable following such request a registration statement on Form S-3 (the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable its best efforts to cause such Registration Statement to become effective within ninety (90) days immediately following the Closing Date (the "Effective Date") and take all other reasonable actions necessary under any federal law or regulation to permit all Registrable Shares to be declared effective as sold or otherwise disposed of;
(c) promptly as possible after filing and notify each Purchaser, at any time when a prospectus relating to remain continuously effective until the earlier of (i) the later of the third anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the such Registration Statement is suspended or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject required to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in or relating to such Registration Statement contains an untrue statement of a material fact or omits to state any fact necessary to make the statements therein not misleading;
(iiid) promptly prepare and file with the closing SEC, and deliver to each Purchaser, such amendments and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective until termination of an acquisition such obligation as provided in Section 9.6 below;
(e) furnish to each Purchaser such number of copies of prospectuses in conformity with the requirements of the Securities Act, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities Shares by the Purchasers;
(f) no later than the Registration Date, file such documents as may be required of the Company for normal state securities law clearance for the resale of the Registrable Shares in exchange for publicly traded stock (i.e.which states of the United States as may be reasonably requested by each Purchaser provided, stock however, that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form not be required in connection with this 10. paragraph (f) to qualify as is available for such a registration. For purposes foreign corporation or execute a general consent to service of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate process in any twelve month period jurisdiction;
(g) no later than the Registration Date, use its best efforts to cause all Registrable Shares to be listed on each securities exchange, if any, on which equity securities by the Company are then listed; and
(h) bear all expenses in connection with the procedures in Section 9.2, other than (i) fees and expenses, if any, of time;counsel or other advisers to the Purchasers, and (ii) any expenses relating to the sale of the Registrable Shares by the Purchasers, including broker's commission, discounts or fees and transfer taxes.
Appears in 1 contract
Sources: Stock and Warrant Purchase Agreement (Onyx Pharmaceuticals Inc)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested subject to receipt of necessary information in writing from the Purchasers, as soon as reasonably practicable, but in no event later than thirty (30) calendar days following the Closing Date (the “Filing Date”), prepare and it qualifies under applicable file with the SEC rules) a Registration Statement on Form S-3 relating to undertake an S-3 registration the sale of the Shares by the Trust with regard Purchaser and the Other Purchasers from time to time on the Voting Securities Nasdaq or the facilities of any national securities exchange on which the Common Stock is then traded or in privately negotiated transactions (the “Registration Statement”). If Form S-3 is not available at that time, as soon as practicable considering the form being used, the Company will file a registration statement or such form as is then available to effect a registration of the Shares, subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions consent of the Exhibit A)Purchasers holding a majority of the Shares actually sold in the Offering, which consent shall not be unreasonably withheld;
(b) use its commercially reasonable efforts, subject to receipt of necessary information from the Trust Purchasers, to cause the SEC to declare the Registration Statement effective within ninety (90) calendar days after the Closing Date (the “Required Effective Date”). However, so long as the Company filed the Registration Statement by the Filing Date, if the Registration Statement receives SEC review, then the Required Effective Date will be the one hundred fiftieth (150th) calendar day after the Closing Date. The Company’s reasonable commercial efforts will include, but not be limited to, as soon as practicable responding to all comments received from the staff of the SEC. If the Company receives notification from the SEC that the Registration Statement will receive no action or review from the SEC, then the Company will, subject to its rights under this Agreement and its ability to request acceleration of effectiveness, use its commercially reasonable efforts to cause the Employees, Registration Statement to become effective within five (5) business days after such SEC notification;
(c) use its commercially reasonable efforts to promptly prepare and file with the SEC as soon as practicable following such request a registration statement on Form S-3 (amendments and supplements to the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to and the prospectus used in connection therewith as may be stated therein, or necessary to make keep the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier earliest of (i) two (2) years after the later of the third anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace PeriodClosing Date, (ii) the date on which the Purchasers may sell all of the Shares then held by the Purchasers, without registration, pursuant to Rule 144(k) of the Securities Act or (iii) such time as all Registrable Shares subject to purchased by all Purchasers in the Transfer may immediately be Offering have been sold during any 90 day period pursuant to a Registration Statement or Rule 144 under of the Securities Act, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registrationThereafter, the Company shall use be entitled to withdraw the Registration Statement and the Purchasers shall have no further right to offer or sell any of the Shares pursuant to the Registration Statement;
(d) notify each Purchaser in writing promptly as to any request for acceleration of the effectiveness of the Registration Statement and furnish to the Purchaser with respect to the Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares) such number of copies of prospectuses and such other form documents as is available the Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Purchaser;
(e) file documents required of the Company for normal Blue Sky clearance in states specified in writing by the Purchaser and reasonably acceptable to the Company; provided, however, that the Company shall not be required to (i) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 7.1; (ii) file a general consent to service of process in any such a registration. For purposes jurisdiction; (iii) subject itself to taxation in any such jurisdiction; (iv) provide any undertakings that cause material expense or burden to the Company; or (v) make any change to its organizational documents; and
(f) bear all expenses in connection with the procedures in paragraphs (a) through (e) of this Section 1.1(a)7.1 and the registration of the Shares pursuant to the Registration Statement, "Grace Period" other than fees and expenses, if any, of counsel or other advisers to the Purchaser or the Other Purchasers or underwriting discounts, brokerage fees, commissions, and other selling expenses incurred by the Purchaser or the Other Purchasers, if any. Notwithstanding the foregoing, it shall mean be a suspension under condition precedent to the obligations of the Company to take any action pursuant to paragraphs (a) through (f) of this Section 1.2(b) 7.1, that the Purchaser shall furnish to the Company such information regarding itself, the Shares to be sold by the Purchaser, and 1.2(c) the intended method of disposition of such Shares as shall be required to effect the registration of the Shares, all of which information shall be furnished to the Company in excess of sixty (60) days writing specifically for use in the aggregate in Registration Statement. The Company understands that the Purchaser disclaims being an underwriter, but the Purchaser being deemed an underwriter shall not relieve the Company of any twelve month period obligations it has hereunder. Notwithstanding the foregoing, the parties understand and agree that the Company shall not be obligated to retain an underwriter with respect to the offer and sale of time;Shares pursuant to the Registration Statement. The Company shall promptly notify the Purchaser of the effectiveness of the Registration Statement, and any post-effective amendments thereto, as well as of the receipt by the Company of any stop orders of the SEC with respect to the Registration Statement and the lifting of any such order.
Appears in 1 contract
Sources: Purchase Agreement (Clayton Williams Energy Inc /De)
Registration Procedures and Expenses. The Company hereby agrees that it shallis obligated to do the following:
(a) if requested (From and it qualifies under applicable SEC rules) to undertake an S-3 registration by after that date which is six months after the Trust with regard to Closing Date, as defined in the Voting Securities subject to Purchase Agreement, Motorola may request in writing that the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, Company prepare and file with the SEC as soon as practicable following such request a registration statement Commission one Registration Statement on Form S-3 (in order to register with the "Registration Statement"), Commission the resale by Motorola of the Registrable Securities through AMEX or the facilities of any national securities exchange on which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated thereinthe Company's Common Stock is then traded, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of privately-negotiated transactions. The Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and shall use all its reasonable commercial efforts to cause such Registration Statement to be declared effective as promptly soon thereafter as possible after filing reasonably possible, and the Company shall use reasonable efforts to remain continuously effective until ensure the earlier effectiveness of (i) such Registration Statement for a period of 12 months from the later of the third anniversary exercise of the TransferWarrant, plusas defined in the Purchase Agreement, in each casefull or the expiration of the Warrant; provided, a number however, that the Company shall have no obligation to ensure the effectiveness of such Registration Statement after such time as all of the capital stock of the Company which Motorola purchases under the Purchase Agreement is immediately resaleable under Rule 144 (as defined below) under the Securities Act. Notwithstanding the foregoing, the Company shall not be obligated to take any action to effect any such Registration pursuant to this Section 5.1(a) during the period starting with the date sixty (60) days equal prior to the number Company's estimated date of daysfiling of, if anyand ending on the date 180 days immediately following the effective date of, an underwritten Registration pertaining to securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan), provided that the Company is actively employing all reasonable efforts in good faith to cause such Registration to become effective. Notwithstanding any other provision to the contrary in this Agreement, the Company shall be obligated to effect no more than one Registration Statement under this Agreement.
(b) The Company shall prepare and file with the Commission (i) such amendments and supplements to the Registration Statement is suspended or not effective beyond and the Grace Periodprospectus used in connection therewith, (ii) such SEC Reports and (iii) such other filings required by the Commission, in each case as may be necessary to keep the Registration Statement continuously effective and not misleading until the earliest of (A) the fifth anniversary date of the Closing, (B) such date as all of the Registrable Securities have been resold or (C) such time as all of the Registrable Shares subject to the Transfer may immediately Securities then held by Motorola can be sold during any 90 day within a given three- month period pursuant to Rule 144 under the Securities Act. Notwithstanding the foregoing, following the effectiveness of the Registration Statement, the Company may, at any time, suspend the effectiveness of the Registration Statement for up to no longer than 30 days, as appropriate (a "Suspension Period"), by giving notice to Motorola, if the Company shall have determined that the Company may be required to disclose any material corporate development. The Company will use its best efforts to minimize the length of any Suspension Period. Notwithstanding the foregoing, the Company may not suspend the effectiveness of the Registration Statement more than twice in any twelve (12) month period. Motorola agrees that, upon receipt of any notice from the Company of a Suspension Period, Motorola will not sell any Registrable Securities pursuant to the Registration Statement until (i) Motorola is advised in writing by the Company that the use of the applicable prospectus may be resumed, (ii) Motorola has received copies of any additional or supplemental or amended prospectus, if applicable, and (iii) Motorola has received copies of any additional or supplemental filings which are incorporated or deemed to be incorporated by reference in such prospectus.
(c) In order to facilitate the closing public sale or other disposition of an acquisition all or any of the Registrable Securities by Motorola, the Company shall furnish to Motorola with respect to the Shares registered under the Registration Statement such number of copies of prospectuses, prospectus supplements and preliminary prospectuses as Motorola reasonably requests in exchange conformity with the requirements of the Securities Act.
(d) The Company shall file any documents required of the Company for publicly traded stock normal blue sky clearance in states specified in writing by Motorola; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented.
(i.e.e) Other than fees and expenses, stock that has been registered if any, of counsel or other advisers to Motorola, which fees and expenses shall be borne by Motorola, the Company shall bear all Registration Expenses.
(f) With a view to making available to Motorola the benefits of Rule 144 promulgated under the Securities Act for issuance ("Rule 144") and any other rule or regulation of the SEC that may at any time permit Motorola to such Investor and is listed on a national securities exchange sell Registrable Securities to the public without registration or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such pursuant to registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) the fifth anniversary of the Closing Date or (B) such date as all of the Registrable Securities shall use have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to Motorola upon request, as long as Motorola owns any Registrable Securities, (A) a written statement by the Company that it has complied with the reporting requirements of Rule 144 and of the Securities Act and Exchange Act, (B) a copy of the most recent annual or quarterly report of the Company, and (C) such other form information as is available for may be reasonably requested in order to avail Motorola of any rule or regulation of the SEC that permits the selling of any such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension Registrable Securities without registration under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;Securities Act.
Appears in 1 contract
Sources: Information and Registration Rights Agreement (Identix Inc)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if subject to receipt of necessary information from the Investors, including the information requested in the Registration Statement Questionnaire, prepare and file with the SEC on or prior to the 30th calendar day following the Closing Date hereof a registration statement (and it qualifies under applicable SEC rulesthe “Registration Statement”) on Form S-1 (or such other form as may be required) to undertake an S-3 registration enable the resale by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute Investor on a joinder agreeing to be bound by the terms and provisions delayed or continuous basis under Rule 415 of the Exhibit ASecurities Act of the Shares and the Warrant Shares and any shares of Common Stock issued or issuable in respect of the Shares and the Warrant Shares by virtue of any stock split, stock dividend, recapitalization or similar event (the “Registerable Securities”);
(b) use commercially reasonable best efforts, subject to receipt of necessary information from the Trust Investor, including the information requested in the Registration Statement Questionnaire, to cause the Registration Statement to become effective within 90 calendar days after the Closing Date, and in any event shall cause the EmployeesRegistration Statement to become effective within one hundred and twenty (120) calendar days after the Closing Date (the “Required Effectiveness Date”);
(c) as expeditiously as practicable, prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus (as soon defined in Section 5.4 below) used in connection therewith and take all such other actions as practicable following such request may be necessary to keep the Registration Statement current and effective for a registration statement on Form S-3 period (the "“Registration Statement")Period”) not exceeding, which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject with respect to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until Securities, the earlier of (i) the later date on which all Registrable Securities then held by the Investor may be sold or transferred in compliance with Rule 144 under the Securities Act (or any other similar provisions then in force) without any volume or manner of the third anniversary of the Transfersale restrictions thereunder, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject to Securities held by the Transfer may immediately be Investor have been sold during any 90 day period (A) pursuant to Rule 144 under the Securities Acta registration statement, (B) to or through a broker or dealer or underwriter in a public distribution or a public securities transaction, or (iiiC) in a transaction exempt from the closing registration and prospectus delivery requirements of the Securities Act under Section 4(1) thereof so that all transfer restrictions and restrictive legends with respect thereto, if any, are removed upon the consummation of such sale;
(d) promptly furnish to the Investor with respect to the Registrable Securities registered under the Registration Statement such reasonable number of copies of the Prospectus as the Investor may request, including any supplements to or amendments to the Prospectus, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities by the Investor;
(e) promptly take such action as may be necessary to qualify, or obtain, an acquisition exemption for the Registrable Securities under such of the state securities laws of United States jurisdictions as shall be necessary to qualify, or obtain an exemption for, the sale of the Registrable Securities in exchange states specified in writing by the Investor; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented, subject itself to general taxation in any such jurisdiction or provide any undertakings that cause the Company undue expense or burden;
(f) bear all expenses in connection with the procedures in paragraphs (a) through (e) and (g) of this Section 5.1 and the registration of the Registrable Securities pursuant to the Registration Statement, regardless of whether a Registration Statement becomes effective, including without limitation: (i) all registration and filing fees and expenses (including filings made with Nasdaq Stock Market); (ii) fees and expenses of compliance with federal securities and state “blue sky” or securities laws; (iii) expenses of printing (including printing certificates for publicly traded stock the Registrable Securities and Prospectuses); (i.e.iv) all application and filing fees, stock if any, in connection with listing of the Registrable Securities with the Nasdaq Stock Market; and (v) all fees and disbursements of counsel of the Company and independent certified public accountants of the Company; provided, however, that the Investor shall be responsible for paying the underwriting commissions or brokerage fees, and taxes of any kind (including, without limitation, transfer taxes) applicable to any disposition, sale or transfer of the Investor’s Registrable Securities. The Company shall, in any event, bear its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties);
(g) advise the Investor promptly, but in any event within two business days by e-mail, fax or other type of communication, and, if requested by such person, confirm such advice in writing: (i) after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation or threat of any proceeding for that purpose, or any other order issued by any state securities commission or other regulatory authority suspending the qualification or exemption from qualification of such Registrable Securities under state securities or “blue sky” laws; and it will promptly use its commercially reasonable efforts to prevent the issuance of any stop order or other order or to obtain its withdrawal at the earliest possible moment if such stop order or other order should be issued; (ii) when the Prospectus or any supplements to or amendments of the Prospectus have been filed, and, with respect to the Registration Statement or any post-effective amendment thereto, when the same has been registered become effective; and (iii) when the SEC notifies the Company whether there will be a “review” of such Registration Statement and whenever the SEC comments in writing on such Registration Statement (the Company shall provide true and complete copies thereof and all written responses thereto to the Investor that pertain to the Investor as a Selling Stockholder or to the Plan of Distribution, but not information which the Company believes would constitute material and non-public information);
(h) except if otherwise required pursuant to written comments received from the SEC upon a review of such Registration Statement, include in the Registration Statement the “Plan of Distribution” attached hereto as Exhibit F;
(i) unless otherwise agreed to by holders of a majority of the Registrable Securities held by the Investor and all Other Investors, neither the Company nor any of its securities holders may include securities of the Company (other than the Registerable Securities) in any Registration Statement filed pursuant to this Agreement and the Company shall not after the date hereof enter into any agreement in contravention of the foregoing;
(j) if at any time during the Registration Period, there is not one or more effective Registration Statements covering the resale of all Registrable Securities and the Company shall determine to prepare and file with the SEC a registration statement relating to an offering for its own account or the account of others under the Securities Act for issuance of any of its equity securities, other than of Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity securities to be issued solely in connection with any acquisition of any entity or business or equity securities issuable in connection with stock option or other employee benefit plans, then the Company shall send to the Investor written notice of such determination and if, within 20 days after receipt of such notice the Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registrationshall so request in writing, the Company shall use include in such other form registration statement those Registrable Securities requested by the Investor to be so included and which are not otherwise covered by one or more effective Registration Statements;
(k) not less than three business days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall furnish to the Investor copies of the “Selling Stockholders” section of such document, the “Plan of Distribution,” any risk factor contained in such document that addresses specifically this transaction or the Selling Stockholders, as is available for proposed to be filed, which documents will be subject to the review and comment of the Investor and its counsel; provided that, the failure of any Investor or his, her or its counsel to respond to such a registration. For purposes proposed documents within five business days after receipt thereof shall be deemed approval of this Section 1.1(a)same; and provided, "Grace Period" further, that no such review and comment shall mean a suspension under Section 1.2(binhibit the Company from filing the Registration Statement or otherwise from complying with its obligations hereunder;
(l) respond as promptly as practicable, but in any event within ten business days, to any comments received from the SEC with respect to each Registration Statement or any amendment thereto and, as promptly as practicable provide the Investor true and 1.2(c) in excess complete copies of sixty (60) days all correspondence from and to the SEC relating to such Registration Statement that would not result in the aggregate disclosure to the Investor of material and non-public information concerning the Company;
(m) comply in all material respects with the provisions of the Securities Act, the Exchange Act and all rules of the SEC promulgated thereunder with respect to the Registration Statements and the disposition of all Registrable Securities covered by each Registration Statement;
(n) File with the SEC a request for acceleration in accordance with Rule 461 promulgated under the Securities Act within five (5) trading days after the date that the Company is notified (orally or in writing (whichever is earlier)) by the SEC that the Registration Statement will not be reviewed or be subject to further review;
(o) Take all other steps necessary to effect the registration of the Registrable Securities;
(p) cooperate with the Investor to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to the Registration Statements, which certificates shall be free of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as the Investor may request; provided, that, the delivery of such certificates shall be subject to the payment by the Investor of any twelve month period of time;transfer taxes, if applicable; and
(q) file a Form D with respect to the Shares and the Warrants as required under Regulation D.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested (as soon as reasonably practicable, but in no event later than ten days following the Closing Date, prepare and it qualifies under applicable SEC rules) file with the Commission the Registration Statement on Form S-3 relating to undertake an S-3 registration the sale of the Shares by the Trust with regard Purchaser and the Other Purchasers from time to time on the Voting Securities subject to Nasdaq National Market or the Transfer facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions, which Registration Statement shall have a “Plan of Distribution” section substantially in the form set forth in Exhibit A attached hereto;
(including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A)b) use its best efforts, subject to receipt of necessary information from the Trust and Purchasers, to cause the EmployeesCommission to declare the Registration Statement effective within sixty (60) days after the Closing Date or, in the event of a review of the Registration Statement by the Commission, within one hundred twenty (120) days after the Closing Date (the “Required Effectiveness Date”);
(c) use its best efforts, subject to receipt of necessary information from the Purchasers, to promptly prepare and file with the SEC as soon as practicable following Commission such request a registration statement on Form S-3 (amendments and supplements to the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to and the prospectus used in connection therewith as may be stated therein, or necessary to make keep the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier earliest of (i) two years after the later effective date of the third anniversary of the TransferRegistration Statement, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Period, (ii) such time as all Registrable the Shares subject to the Transfer may immediately be sold during any 90 day period become eligible for resale by non-affiliates pursuant to Rule 144 144(k) under the Securities Act of 1933, as amended (the “Effectiveness Period”);
(d) furnish to the Purchaser with respect to the Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares) such number of copies of prospectuses and such other documents as the Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Purchaser;
(e) file documents required of the Company for normal Blue Sky clearance in states specified in writing by the Purchaser; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraphs (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement, other than fees and expenses, if any, of counsel or other advisers to the Purchaser or the Other Purchasers or underwriting discounts, brokerage fees and commissions incurred by the Purchaser or the Other Purchasers, if any;
(g) file a Form D with respect to the Shares as required under Regulation D and to provide a copy thereof to the Purchaser promptly after filing;
(h) issue a press release describing the transactions contemplated by this Agreement on the Closing Date; and
(i) make available, while the Registration Statement is effective and available for resale, its Chief Executive Officer and Chief Financial Officer for questions regarding information which the Purchaser may reasonably request in order to fulfill any due diligence obligation on its part. The Company understands that the Purchaser disclaims being an underwriter, but the Purchaser being deemed an underwriter shall not relieve the Company of any obligations it has hereunder. A questionnaire related thereto to be completed by the Purchaser is attached hereto as Appendix I. If (i) the Registration Statement is not filed on or prior to ten days following the Closing Date or the Company fails to file with the Commission a request for acceleration in accordance with Rule 461 promulgated under the Securities Act, within five trading days after the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be “reviewed,” or will not be subject to further review, (ii) the Registration Statement filed hereunder is not declared effective by the Commission by the Required Effectiveness Date, or (iii) after the closing of an acquisition Registration Statement is filed with and declared effective by the Commission, such Registration Statement ceases to be effective as to all the Shares to which it is required to relate at any time prior to the expiration of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance Effectiveness Period without being succeeded within ten trading days by an amendment to such Investor Registration Statement or by a subsequent Registration Statement filed with and declared effective by the Commission, or (iv) the Common Stock is not listed on a or quoted, or is suspended from trading on, the Nasdaq National Market or the facilities of any national securities exchange on which the Common Stock is then traded for a period of three trading days (which need not be consecutive trading days) (any such failure or Nasdaqbreach being referred to as an “Event,” and the date on which such Event occurs being referred to as “Event Date”), then: (x) on each such Event Date the Company shall pay to each Purchaser an amount in cash, as partial liquidated damages and not as a penalty, equal to 1% of another entity the aggregate purchase price paid by such Purchaser pursuant to the Purchase Agreement; and (y) on each monthly anniversary of each such Event Date thereof (if the "Registration Period"). In applicable Event shall not have been cured by such date) until the event that Form S-3 applicable Event is unavailable for such registrationcured, the Company shall use pay to each Purchaser an amount in cash, as partial liquidated damages and not as a penalty, equal to 1% of the aggregate purchase price paid by such other form as is available Purchaser pursuant to the Purchase Agreement. Such payments shall be in partial compensation to the Purchasers and shall not constitute the Purchaser’s exclusive remedy for such a registrationevents. For purposes of If the Company fails to pay any liquidated damages pursuant to this Section 1.1(a)in full within seven days after the date payable, "Grace Period" shall mean the Company will pay interest thereon at a suspension under Section 1.2(brate of 10% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) and 1.2(c) to the Purchaser, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in excess of sixty (60) days in the aggregate in any twelve month period of time;full.
Appears in 1 contract
Sources: Purchase Agreement (Pharmacopeia Drug Discovery Inc)
Registration Procedures and Expenses. The Company hereby agrees that it shallwill:
1.1.1 subject to receipt of necessary information from each Purchaser, including all information set forth in Schedule 1 attached hereto, if but only if the Company receives a minimum of $800,000 in cumulative Subscription Price from the sale of Notes and Warrants to all Purchasers, use commercially reasonable efforts to prepare and file with the SEC, within the later of (ai) sixty (60) days after the Closing of at least $800,000 in cumulative Subscription Price in Notes and Warrants for all Purchasers (the “Threshold Closing”) and (ii) thirty (30) days after earlier of (A) the Closing of at least $2,000,000 in cumulative Subscription Price in Notes and Warrants for all Purchasers or (B) sixty (60) days after the Threshold Closing if requested the Company has not given written notice in good faith to each Purchaser within thirty (30) days after the Threshold Closing that the Company is, at the time of such notice, involved in active negotiations with one or more additional investors to sell Notes and it qualifies under applicable SEC rulesWarrants to such investors, but in no case shall the date of the filing deadline be later than November 30, 2007 (the “Filing Date Deadline”), a registration statement (the “Registration Statement”) on Form SB-2 (or, if Form SB-2 is not then available to the Company, on such appropriate form as is then available to the Company) to undertake an S-3 registration enable the resale of as many as practicable of the Common Stock and the Common Stock issuable upon conversion of the Notes and exercise of all of the Warrants by the Trust with regard Purchasers and the placements agents under the Purchase Agreement on a delayed or continuous basis under Rule 415 of the Securities Act until the earlier of: (1) the date on which all such shares have been resold or otherwise transferred pursuant to the Voting Registration Statement; (2) the date on which all such shares are transferred in compliance with Rule 144 under the Securities Act or may be sold or transferred pursuant to Rule 144 under the Securities Act (or any other similar provisions then in force) without any volume or manner of sale restrictions thereunder (the “Rule 144 Eligibility Date”); or (3) the date on which all such shares cease to be outstanding (whether as a result of redemption, repurchase and cancellation or otherwise); provided, however, that, the Company will not be liable to the Purchasers or placement agents for any liquidated damages for any Effectiveness Failure pursuant to Section 1.5 if (A) such Effectiveness Failure is solely the result of any delay in effectiveness of the Registration Statement relating to the SEC’s not permitting the registration under Rule 415 of the Securities Act of any number of shares of Common Stock in excess of thirty percent (30%) of the Company’s public float and (B) the Company is using its best efforts to promptly file an amendment to the Registration Statement which would enable the registration of up to thirty percent (30%) of the Company’s public float. Prior to the filing of the Registration Statement, the Company will furnish to each purchaser a copy of the “Selling Shareholder” section of the Registration Statement and to one counsel for the Purchasers (as designated by the Collateral Agent) a copy of the Registration Statement, which documents will be subject to their review. If the Transfer Company has not received any comments thereto within three (including3) days of delivery, the Employee Shares should the Employees execute a joinder agreeing to then such documents will be bound deemed approved by the terms and provisions of the Exhibit A)relevant parties;
1.1.2 use commercially reasonable efforts, subject to receipt of necessary information from each Purchaser, including the Trust information set forth in Schedule 1 attached hereto, to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof but within 90 days after the date on which the Company files the Registration Statement with the SEC (120 days if the Registration Statement is reviewed by the SEC) (the “Effective Date Deadline”); provided, however, that if the Company is notified by the SEC that the Registration Statement will not be reviewed or is no longer subject to further review and comments, the Employees, Effective Date Deadline will be the fifth OTC trading day following the date on which the Company is so notified subject to any reasonable delay which Issuer and Issuer’s counsel in their sole discretion deem necessary in connection with the disclosure of material nonpublic information;
1.1.3 use commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus, in the form first filed with the Commission pursuant to Rule 424(b) of the Regulations, or filed as soon as practicable following such request a registration statement on Form S-3 part of the Registration Statement at the time of effectiveness if no Rule 424(b) filing is required (the "Registration Statement"), which “Prospectus”) used in connection therewith and take all such other actions as may be necessary to keep the Registration Statement shall current and effective for a period (the ”Registration Period”) not contain any untrue statement of material fact or omit to state a material fact required to be stated thereinexceeding, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject with respect to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until Purchasers’ Common Stock, the earlier of (i) the later of the third second anniversary of the Transfer, plus, in each case, a number Final Closing (but with respect to Common Stock that are issuable upon exercise of days equal to the number of days, if anyWarrants, the Registration Statement is suspended or not effective beyond foregoing date will be the Grace Periodsecond anniversary of the date the related Warrant was exercised), (ii) the Rule 144 Eligibility Date, and (iii) such time as all Registrable Shares subject to Common Stock held by the Transfer may immediately be Purchasers have been sold during any 90 day period (A) pursuant to Rule 144 under the Securities Acta registration statement, (B) to or through a broker or dealer or underwriter in a public distribution or a public securities transaction, or (iiiC) in a transaction exempt from the closing of an acquisition registration and prospectus delivery requirements of the Registrable Securities in exchange for publicly traded stock (i.e.Act under Section 4(1) thereof so that all transfer restrictions and restrictive legends with respect thereto, stock that has been if any, are removed upon the consummation of such sale;
1.1.4 promptly furnish to each Purchaser with respect to the Common Stock registered under the Securities Act Registration Statement such reasonable number of copies of the Prospectus, including any supplements to or amendments of the Prospectus, in order to facilitate the public sale or other disposition of all or any of the Common Stock by the Purchasers;
1.1.5 promptly take such action as may be necessary to qualify, or obtain, an exemption for the Common Stock under such of the state securities laws of United States jurisdictions as will be necessary to qualify, or obtain an exemption for, the sale of the Common Stock in states specified in writing by the Purchasers; but the Company will not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
1.1.6 bear all expenses actually incurred in connection with the registration of the Common Stock pursuant to the Registration Statement, regardless of whether a Registration Statement becomes effective, including without limitation: (i) all registration and filing fees and expenses (including filings made with the NASD); (ii) fees and expenses of compliance with federal securities and state “blue sky” or securities laws; (iii) expenses of printing (including printing certificates for the Common Stock and Prospectuses); and (iv) all fees and disbursements of counsel of the Company and independent certified public accountants of the Company; but each Purchaser will be responsible for paying the fees and disbursements for such Purchaser’s respective counsel (with the exception of those reasonable and necessary fees and expenses actually incurred by one counsel for the Purchaser’s in connection with the review of the Registration Statement), the underwriting commissions or brokerage fees, and taxes of any kind (including, without limitation, transfer taxes) applicable to any disposition, sale or transfer of such Purchaser’s Common Stock, and the Company will, in any event, bear its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties); and
1.1.7 advise the Purchasers, within two (2) business days by e-mail, fax or other type of communication, and, if requested by such person, confirm such advice in writing: (i) after it will receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation or threat of any proceeding for that purpose, or any other order issued by any state securities commission or other regulatory authority suspending the qualification or exemption from qualification of such Common Stock under state securities or “blue sky” laws; and it will promptly use its commercially reasonable efforts to prevent the issuance of any stop order or other order or to obtain its withdrawal at the earliest possible moment if such Investor stop order or other order should be issued; and is listed on a national securities exchange (ii) when the Prospectus or Nasdaq) any supplements to or amendments of another entity (the "Prospectus have been filed, and, with respect to the Registration Period"). Statement or any post-effective amendment thereto, when the same has become effective.
1.1.8 In the event that Form S-3 is unavailable for such registrationof an underwritten offering of Registrable (an “Underwritten Offering”), the Company shall use and each participating Purchaser (each a “Participating Holder”), will negotiate in good faith and enter into reasonable and customary agreements (including underwriting agreements in reasonable and customary form, which may include, in the case of an underwritten offering on a firm commitment basis, customary “lock-up” obligations) and take such other form as is available for actions (including using its best efforts to make such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) road show presentations (but in no event will the Company be required to incur travel and 1.2(c) lodging expenses in excess of sixty (60) days $20,000 in the aggregate connection with all road shows attended by Company management in any twelve month period) and otherwise engage in such reasonable marketing support in connection with any such underwritten offering, including the obligation to make its executive officers available for such purpose if so requested by the managing underwriter for such offering) as are reasonably requested by the managing underwriter in order to expedite or facilitate the sale of such Registrable Securities. The representations, warranties and covenants of the Company in any underwriting agreement which are made to or for the benefit of any underwriters, to the extent applicable, will also be made to and for the benefit of the Participating Holders. No Participating Holder will be required to make any representations or warranties in the underwriting agreement except, if applicable, with respect to such Participating Holder’s organization, good standing, authority, title to Registrable Securities, lack of conflict of such sale with such Participating Holder’s material agreements and organizational documents, and, with respect to written information relating to such Participating Holder, that such Participating Holder has furnished in writing expressly for inclusion in such Registration Statement.
1.1.8.1 The Company will make available for inspection by each Participating Holder, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by such Participating Holder or any such underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company and any of its subsidiaries (collectively, the “Records”) as will be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the officers, directors and employees of the Company to supply all information reasonably requested by any such Inspector in connection with such registration.
1.1.8.2 The Company will, in connection with any registration of an Underwritten Offering of Registrable Securities hereunder, use best efforts to furnish to each Participating Holder and to the managing underwriter, if any, a signed counterpart, addressed to such Participating Holder and the managing underwriter, if any, of (a) an opinion or opinions of counsel to the Company and (b) a comfort letter or comfort letters from the Company’s independent public accountants pursuant to Statement on Auditing Standards No. 72 (or any successor thereto), each in customary form and covering such matters of the type customarily covered by opinions or comfort letters, as the case may be, as each such Participating Holder and the managing underwriter, if any, reasonably requests.
1.1.8.3 The Company will not be obligated to effect (x) more than three (3) Registration Statements pertaining to Underwritten Offerings within any 24 month period of time;or
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it If and whenever LifeQuest is required to include the Merger Consideration in a registration statement under the Securities Act, as provided in Section 11.4 hereof, LifeQuest shall, as expeditiously as is reasonably practicable, do each of the following:
(ai) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, prepare and file with the SEC as soon as practicable following such request a registration statement on Form S-3 with respect to the Merger Consideration and, subject to the limitations under Section 11.4 hereof, use its best efforts to cause such registration statement to become effective;
(ii) cooperate with the "Registration Statement"Shareholder and any underwriter who shall sell the Merger Consideration in connection with their review of LifeQuest made in connection with such registration;
(iii) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for 120 days from the date of its effectiveness, and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all the Merger Consideration covered by such registration statement for such period;
(iv) furnish to the Shareholder such number of copies of the prospectus forming a part of such registration statement (including each preliminary prospectus), in conformity with the requirements of the Securities Act, and such other documents as the Shareholder may reasonably request in order to facilitate the disposition of the Merger Consideration; and
(v) LifeQuest shall (a) notify the Shareholder at any time when a prospectus relating to the Merger Consideration is required to be delivered under the Securities Act, of the happening of any event as a result of which Registration Statement the prospectus forming a part of such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and (b) at the request of the Shareholder, prepare and furnish to the Shareholder a reasonable number of copies of any supplement to or any amendment of such prospectus that may be necessary so that, as thereafter delivered to the purchasers of the Merger Consideration, such prospectus shall not contain include any untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statement therein, statements therein not misleading in the light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) the later of the third anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;then existing.
Appears in 1 contract
Sources: Plan of Merger and Acquisition Agreement (Lifequest Medical Inc)
Registration Procedures and Expenses. The Company hereby Parent agrees that after the filing of the Registration Statement it shallwill:
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus as soon may be necessary to keep the Registration Statement effective until the Parent Common Stock so registered and qualified is no longer owned by any Shareholder or until the expiration of a period of 15 months after the Effective Time, whichever is earlier; provided that, if as practicable following result of the exercise by Parent of its rights pursuant to the first sentence of Section 10.4(c), any such request a twenty-one-day period shall end at any time after such 15-month period, the period during which the Registration Statement shall remain effective shall be extended to the end of such twenty-one-day period;
(b) if the Registration Statement ceases for any reason to be effective during the period referred to in clause (a), use its best efforts to either make such Registration Statement effective or to file another registration statement on Form S-3 (which for purposes of this Agreement shall be the "Registration Statement"), which Registration Statement " and the related prospectus shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable SharesProspectus") by the Trust from time to time on the Nasdaq and use all reasonable its best efforts to cause such Registration Statement to be declared become effective as promptly soon as possible after filing practicable and remain effective for the period referred to remain continuously effective until the earlier of in clause (ia);
(c) the later of the third anniversary of the Transferdeliver to each Shareholder, plus, in each caseas soon as it is available, a number conformed copy of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Period, (iiincluding any preliminary prospectus) such time as all Registrable Shares subject originally filed and of each amendment thereto (including exhibits and documents incorporated by reference therein);
(d) furnish to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been each Shareholder selling Parent Common Stock so registered under the Securities Act such number of copies of the Prospectus and any amendments or supplements thereto (including all Exhibits thereto and all documents incorporated by reference therein) and the Prospectus included in such Registration Statement (including each preliminary prospectus) as the Shareholders may reasonably request in order to effect the offering and sale of the shares of Parent Common Stock to be offered and sold);
(e) pay all fees and expenses (including without limitation registration and filing fees and legal (limited to a single law firm retained by Shareholders), accounting (limited to the accountants retained by the Company) and printing fees and expenses but excluding selling fees, discounts and commissions with respect to the sale of Parent Common Stock and any out-of-pocket expenses of the Shareholders) in connection with such registration or qualification; and
(f) if during the period that the Registration Statement is required to be kept effective, any other shares of Parent Common Stock shall be issued in respect of the Parent Common Stock delivered pursuant hereto (by reason of any stock split, stock dividend, reclassification, recapitalization or similar event), Parent agrees to use its best efforts to cause such additional shares of Parent Common Stock to be registered pursuant to the Registration Statement or another registration statement (which other Registration Statement shall be deemed for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(aAgreement to be a "Registration Statement" and the related prospectus shall be a "Prospectus") and, except as provided in clauses (i), "Grace Period" shall mean a suspension under Section 1.2(b(ii) and 1.2(c(iii) in excess of sixty (60) days in Section 10.4(a), registered or qualified under the aggregate in any twelve month period of time;relevant state securities laws.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, prepare and file with the SEC as soon as practicable following such request a registration statement on Form S-3 (the "Registration Statement"), which amendments and supplements to such Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to and the prospectus used in connection therewith as may be stated therein, or necessary to make keep such Registration Statement continuously effective until termination of such obligation as provided in Section 2.2 below;
(b) furnish to the statement thereinHolder (and to each underwriter, if any, of such Registrable Securities) such number of copies of prospectuses in conformity with the requirements of the Securities Act and such other documents as the Holders may reasonably request, in light order to facilitate the public sale or other disposition of all or any of the circumstances in which they were madeRegistrable Securities by the Holder; provided, not misleadinghowever, that the Company’s obligation pursuant to enable this section may be satisfied by the electronic delivery of the final prospectus;
(c) file such documents as may be required of the Company for normal securities law clearance for the resale of the shares Registrable Securities in such states of the United States as may be reasonably requested by each Holder; provided, however, that the Company Common Stock subject shall not be required in connection with this paragraph (c) to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) the later of the third anniversary of the Transfer, plus, qualify generally to do business in each case, a number of days equal any jurisdiction where it would not otherwise be required to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Periodqualify but for this Agreement, (ii) such time as all Registrable Shares subject execute a general consent to the Transfer may immediately be sold during service of process in any 90 day period pursuant to Rule 144 under the Securities Actjurisdiction, or (iii) take any action that would cause it to become subject to any taxation in any jurisdiction where it would not otherwise be subject to such taxation;
(d) advise the closing Holder promptly:
(i) of an acquisition the effectiveness of any post-effective amendments to the Registration Statement;
(ii) of any request by the SEC for amendments to the Registration Statement or amendments to the prospectus or for additional information relating thereto;
(iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Registrable Securities for offering or sale in exchange any jurisdiction, or the initiation of any proceeding for publicly traded stock any of the preceding purposes; and
(i.e., stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaqiv) of another entity (the "existence of any fact and the happening of any event, of which the Company has knowledge, that makes any statement of a material fact made in the Registration Period"). In the event that Form S-3 is unavailable for such registrationStatement, the Company shall use such other form as is available for such a registration. For purposes prospectus and amendment or supplement thereto, or any document incorporated by reference therein, untrue, or that requires the making of any additions to or changes in the Registration Statement or the prospectus in order to make the statements therein not misleading; and
(e) bear all expenses in connection with the procedures in paragraphs (a) through (d) of this Section 1.1(a)2.1 and the registration of the Registrable Securities on such Registration Statement and the satisfaction of the blue sky laws of any state, "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;as applicable.
Appears in 1 contract
Sources: Supplemental Registration Rights Agreement (Mills Corp)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested as soon as practicable, but in no event later than thirty days following the Closing Date (the “Filing Deadline”), prepare and it qualifies under applicable SEC rules) file with the Commission the Registration Statement on Form S-3 relating to undertake an S-3 registration the resale of the Shares by the Trust with regard Purchaser and the Other Purchasers from time to time on the Voting Securities subject NASDAQ or the facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions; prior to the Transfer (includingfiling, the Employee Shares should Company shall provide the Employees execute a joinder agreeing Purchaser an opportunity to be bound by review and comment on the terms and provisions of disclosure regarding the Exhibit A)Purchaser;
(b) use its best efforts, subject to receipt of necessary information from the Trust and Purchasers, to cause the Employees, prepare and file with Commission to declare the SEC as soon as practicable following such request a registration statement on Form S-3 (the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") effective by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) the later of the third anniversary of the Transfer, plus, in each case, a number of 60 days equal to the number of daysor, if any, the Registration Statement is suspended selected for review by the Commission, 120 days after the Closing Date and (ii) the 5th business day after the date the Company is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be reviewed or will not be subject to further review (such earlier date, the “Effective Deadline”);
(c) promptly prepare and file with the Commission such amendments and supplements to the Registration Statement and the prospectus used in connection therewith as may be necessary to keep the Registration Statement effective beyond until the Grace Periodearliest of (i) two years after the effective date of the Registration Statement, (ii) such time as all Registrable of the Shares subject have been sold pursuant to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities ActRegistration Statement, or (iii) such time as the closing of an acquisition of the Registrable Securities in exchange Shares become eligible for publicly traded stock (i.e., stock that has been registered resale by a Purchaser without any volume limitations or other restrictions pursuant to Rule 144(b)(1)(i) under the Securities Act for issuance or any other rule of similar effect;
(d) furnish to the Purchaser with respect to the Shares registered under the Registration Statement (and to each underwriter, if any, of such Investor Shares) such number of copies of prospectuses and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form documents as is available for such a registration. For purposes the Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Purchaser;
(e) bear all expenses in connection with the procedures in paragraphs (a) through (e) of this Section 1.1(a)7.1 and the registration of the Shares pursuant to the Registration Statement, "Grace Period" shall mean other than fees and expenses, if any, of counsel or other advisers to the Purchaser or the Other Purchasers or underwriting discounts, brokerage fees and commissions incurred by the Purchaser or the Other Purchasers, if any, in connection with the offering of the Shares pursuant to the Registration Statement;
(f) file a suspension Form D with respect to the Shares as required under Section 1.2(b) Regulation D and 1.2(cto provide a copy thereof to the Purchaser promptly after filing; and
(g) in excess of sixty (60) days in order to enable the aggregate in any twelve month Purchasers to sell the Shares under Rule 144 to the Securities Act, for a period of time;one year from Closing, use its commercially reasonable efforts to comply with the requirements of Rule 144, including without limitation, use its commercially reasonable efforts to comply with the requirements of Rule 144(c)(1) with respect to public information about the Company and to timely file all reports required to be filed by the Company under the Exchange Act. The Company understands that the Purchaser disclaims being an underwriter. A draft of the proposed form of the questionnaire related to the Registration Statement to be completed by the Purchaser is attached hereto as Appendix I.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees 6.1 Within thirty (30) days after each of (i) the Equity Investment Closing Date; (ii) the Subsequent Financing Closing Date and (iii) any issuance of Warrant Shares (or any series of Warrant Share issuances that it take place within the thirty- (30)-day period prior to the filing of a Registration Statement (as such term is defined below)), with an aggregate value of at least Five Hundred Thousand Dollars ($500,000) (unless such issuance or issuances of Warrant Shares takes place within thirty (30) days of the Equity Investment Closing Date or the Subsequent Financing Closing Date, in which case the Five Hundred Thousand Dollar ($500,000) minimum shall not apply, and such Warrant Shares shall be aggregated and registered with the Equity Investment Shares issued on the Equity Investment Closing Date or the Subsequent Financing Shares issued on the Subsequent Financing Closing Date, as applicable) (in each case, a “Measure Date”), Parent shall:
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to receipt of necessary information from VPVP, use its reasonable best efforts to prepare and file with the Transfer SEC a registration statement (including, the Employee Shares should “Registration Statement”) on Form S-3 to enable the Employees execute a joinder agreeing to be bound by the terms and provisions resale of the Exhibit A)Registrable Shares by VPVP on a delayed or continuous basis under Rule 415 of the Act;
(b) use its reasonable best efforts, subject to receipt of necessary information from VPVP, to cause the Trust and Registration Statement to become effective within ninety (90) days of the Employees, Measure Date;
(c) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus (as soon such term is defined in Section 6.4(a) below) used in connection therewith and take all such other actions as practicable following such request may be necessary to keep the Registration Statement current and effective for a registration statement on Form S-3 period (the "“Registration Statement"), which Registration Statement shall Period”) ending not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until later than the earlier of (i) the later of the third second (2nd) anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Period, applicable Measure Date); (ii) the date on which all Registrable Shares then held by VPVP may be sold or transferred in compliance with Rule 144 under the Act (or any other similar provisions then in force) without any volume or manner of sale restrictions thereunder and (iii) such time as all Registrable Shares subject held by VPVP have been sold (A) pursuant to a registration statement; (B) to or through a broker or dealer or underwriter in a public distribution or a public securities transaction or (C) in a transaction exempt from the registration and prospectus delivery requirements of Section 4(1) of the Act so that all transfer restrictions and restrictive legends with respect thereto, if any, are removed upon the consummation of such sale;
(d) promptly furnish to VPVP with respect to the Transfer Registrable Shares registered under the Registration Statement such reasonable number of copies of the Registration Statement and Prospectus, including any supplements to or amendments of the Prospectus or Registration Statement, in order to facilitate the public sale or other disposition of all or any of such Registrable Shares by VPVP;
(e) promptly take such action as may immediately be sold during necessary to qualify, or obtain, an exemption for the Registrable Shares under such of the state securities laws of United States jurisdictions as shall be necessary to qualify, or obtain an exemption for, the sale of the Registrable Shares in states specified in writing by VPVP; provided, however, that Parent shall not be required to qualify to do business or consent to service of process in any 90 day period jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraphs (a) through (c) of this Section 6.1 and the registration of the Registrable Shares pursuant to Rule 144 under the Securities ActRegistration Statement, regardless of whether a Registration Statement becomes effective, including, without limitation: (i) all registration and filing fees and expenses (including filings made with the NASD); (ii) fees and expenses of compliance with federal securities and state securities or “blue sky” laws; (iii) expenses of printing (including printing certificates for the closing Registrable Shares and Prospectuses); (iv) all application and filing fees in connection with listing the Registrable Shares on NASDAQ and (v) all fees and disbursements of an acquisition counsel of Parent and the independent certified public accountants of Parent; provided, however, that VPVP shall be responsible for paying the underwriting commissions or brokerage fees, and taxes of any kind (including, without limitation, transfer taxes) applicable to any disposition, sale or transfer of VPVP’s Registrable Shares. Parent shall, in any event, bear its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties); and
(g) advise VPVP, within two (2) Business Days by e-mail, fax or other type of communication, and, if requested by VPVP, confirm such advice in writing: (i) after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation or threat of any proceeding for that purpose, or any other order issued by any state securities commission or other regulatory authority suspending the qualification or exemption from qualification of such Registrable Securities in exchange for publicly traded stock Shares under state securities or “blue sky” laws; and it shall promptly use its reasonable best efforts to prevent the issuance of any stop order or other order or to obtain its withdrawal at the earliest possible moment if such stop order or other order should be issued and (i.e.ii) when the Prospectus or any supplements to or amendments of the Prospectus have been filed, stock that and, with respect to the Registration Statement or any post-effective amendment thereto, when the same has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;become effective.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested subject to receipt of necessary information from the Investors, prepare and file with the SEC, within twenty (and it qualifies under applicable SEC rules20) business days after the date hereof, the Registration Statement to undertake an S-3 registration enable the resale of the Shares by the Trust with regard Investors from time to time through the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions automated quotation system of the Exhibit A)Nasdaq National Market (or such other exchange or trading market on which the Shares are publicly traded, if applicable) or in privately-negotiated transactions;
(b) use its best efforts, subject to receipt of necessary information from the Trust and Investors, to cause the Employees, Registration Statement to become effective within 90 days after the Registration Statement is filed by the Company;
(c) prepare and file promptly with the SEC as soon as practicable following such request a registration statement on Form S-3 (amendments and supplements to the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state and the Prospectus used in connection therewith (a material fact required to "Prospectus") as may be stated therein, or necessary to make keep the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement current and effective for a period not exceeding, with respect to be declared effective as promptly as possible after filing and to remain continuously effective until each Investor's Shares purchased hereunder, the earlier of (i) the later of the third second anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace PeriodClosing Date, (ii) the date on which such time as Investor may sell all Registrable Shares subject to the Transfer may immediately be sold during any 90 day period pursuant to then held by such Investor without restriction under Rule 144 under 144(k) of the Securities Act, or (iii) such time as all Shares purchased by such Investor hereunder have been sold pursuant to a registration statement.
(d) furnish to each Investor with respect to the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been Shares registered under the Registration Statement such number of copies of Prospectuses and preliminary Prospectuses (a "Preliminary Prospectus") in conformity with the requirements of the Securities Act for issuance and such other documents as such Investor may reasonably request promptly after receiving such request, in order to facilitate the public sale or other disposition of all or any of the Shares by such Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to such Investor shall be subject to the receipt by the -7- Company of reasonable assurances from the Investor that such Investor will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) timely file documents required of the Company for blue sky clearance in states specified in writing by each Investor, provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is listed on a national securities exchange not now so qualified or Nasdaqhas not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of another entity this Section 4.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise each Investor, promptly after it shall receive notice or obtain knowledge of the "issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Period")Statement or of the initiation or threat of any proceeding for that purpose; and it will promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued. In The Company understands that each Investor disclaims being an underwriter, but if such Investor is deemed an underwriter by the event that Form S-3 is unavailable for such registrationSEC, the Company shall use not be relieved of any obligations it has hereunder, PROVIDED, HOWEVER that if the Company receives notification from the SEC that such other form as Investor is available deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended for a reasonable period not to exceed the earlier of (i) the 90th day after such a registration. For purposes SEC notification, or (ii) 120 days after the initial filing of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;Registration Statement with the SEC.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested as soon as practicable, but in no event later than 30 calendar days following the Closing Date (the “Filing Deadline”), prepare and it qualifies under applicable SEC rulesfile with the Commission the Registration Statement on Form S-3 (or other appropriate form (which, for so long as the Company is a “well known seasoned issuer,” shall be an “Automatic Shelf Registration Statement,” as those terms are defined in Rule 405 of the Securities Act) that may be used to undertake sell the Securities at market, rather than fixed, prices) relating to the resale of the Securities (including shares of Common Stock issuable as a result of an S-3 registration anti-dilution adjustment to the Conversion Price (as defined in the Certificate of Designations) and any capital stock of the Company issued with respect to the Shares or the Conversion Shares as a result of any stock split, stock dividend, recapitalization, exchange or similar event or otherwise (collectively, the “Registrable Securities”) by the Trust with regard Purchaser and the Other Purchasers from time to time on, which Registration Statement the Company shall have provided to the Voting Securities subject Purchaser in draft form no less than five calendar days prior to the Transfer filing;
(includingb) if such Registration Statement is not automatically effective upon filing, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A)use its reasonable best efforts, subject to receipt of necessary information from the Trust and Purchasers, to cause the Employees, Commission to declare the Registration Statement effective upon filing;
(c) promptly prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the prospectus used in connection therewith as soon may be necessary to keep the Registration Statement effective until the earliest of (i) one year after the effective date of the Registration Statement or (ii) such time as practicable following the Registrable Securities become eligible for resale by each of the Purchasers pursuant to Rule 144 under the Securities Act without any restrictions as to the securities that can be immediately sold (i.e. currently one-year from Closing); provided that, for the avoidance of doubt, in no event shall the Company have any obligation to keep the Registration Statement effective after such request a time as all of the Registrable Securities have been sold pursuant to the Registration Statement or Rule 144;
(d) furnish to the Purchaser with respect to the Registrable Securities registered under the Registration Statement such number of copies of prospectuses and such other documents as the Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities by the Purchaser;
(e) file documents required of the Company for normal Blue Sky clearance in states specified in writing by the Purchaser; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraphs (a) through (e) of this Section 7.1 and the registration statement on Form S-3 (of the "Registrable Securities pursuant to the Registration Statement"), which other than fees and expenses, if any, of counsel or other advisers to the Purchaser or the Other Purchasers or brokerage fees, commissions and other sales related expenses incurred by the Purchaser or the Other Purchasers, if any in connection with the offering of the Registrable Securities pursuant to the Registration Statement;
(g) file a Form D with respect to the Shares as required under Regulation D and to provide a copy thereof to the Purchaser promptly after filing;
(h) issue a press release describing the transactions contemplated by this Agreement on the Closing Date;
(i) in order to enable the Purchasers to sell the Shares and Conversion Shares under Rule 144 to the Securities Act, for a period of one year from Closing, use its commercially reasonable efforts to comply with the requirements of Rule 144, including without limitation, use its commercially reasonable efforts to comply with the requirements of Rule 144(c)(1) with respect to public information about the Company and to timely file all reports required to be filed by the Company under the Exchange Act;
(j) ensure that the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) 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 statement thereinstatements therein (in the case of prospectuses, in the light of the circumstances in which they were made) not misleading;
(k) notify the Purchaser in writing of the happening of any event, as promptly as practicable after becoming aware of such event, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading (provided that the Company shall endeavor that such notice not contain any material, nonpublic information), and, promptly prepare a supplement or amendment to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and correct such untrue statement or omission;
(l) use its reasonable best efforts to remain continuously effective until prevent the earlier issuance of (i) any stop order or other suspension of effectiveness of a Registration Statement, or the later suspension of the third anniversary qualification of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition of the Registrable Securities for sale in exchange for publicly traded stock (i.e.any jurisdiction and, stock that has been registered under if such an order or suspension is issued, to obtain the prompt withdrawal of such order or suspension and to notify each Purchaser who holds Registrable Securities Act for being sold of the issuance to of such Investor order and is listed on a national securities exchange the resolution thereof or Nasdaq) its receipt of another entity (actual written notice of the "Registration Period"). In the event that Form S-3 is unavailable initiation or written threat of any proceeding for such registrationpurpose; and
(m) include in the “plan of distribution” section of the Registration Statement disclosure substantially to the effect that: “The selling stockholders may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities pledged by the selling stockholders or borrowed from the selling stockholders or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from the selling stockholders in settlement of those derivatives to close out any related open borrowings of stock.” The Company understands that the Purchaser disclaims being an underwriter, but the Purchaser being deemed an underwriter shall use such other not relieve the Company of any obligations it has hereunder. A draft of the proposed form of the questionnaire related to the Registration Statement to be completed by the Purchaser is attached hereto as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;Appendix I.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested Subject to receipt of necessary information in writing from the Investors, prepare and file with the SEC, as soon as practicable, but in no event later than the earliest of thirty (and it qualifies under applicable SEC rules30) days after the Closing Date or seven (7) days after the filing of a registration statement on Form S-1 or Form S-2 by the Company (the "FILING DATE"), a registration statement on Form S-3 (the "REGISTRATION STATEMENT") to undertake an S-3 registration enable the resale of the Shares (together with any shares of capital stock issued or issuable from time to time, with any adjustments, in exchange for or otherwise with respect to the Shares) by the Trust with regard Investors from time to time through the Voting Securities automated quotation system of the Nasdaq Stock Market (or the facilities of any national securities exchange on which the Company's Common Stock is then traded) or in privately-negotiated transactions. If Form S-3 is not available at that time, then the Company will file a Registration Statement on such form as is then available to effect a registration of the Shares, subject to the Transfer (including, the Employee Shares should the Employees execute consent of a joinder agreeing to be bound by the terms and provisions majority of the Exhibit A)Investors, which consent shall not be unreasonably withheld.
(b) Use its reasonable commercial efforts, subject to receipt of necessary information from the Trust Investors, to cause the Registration Statement to be declared effective by the SEC as soon as practicable after filing, and in any event no later than the Employeesninetieth (90th) day after the Closing Date (the "REQUIRED EFFECTIVE DATE"). However, so long as the Company filed the Registration Statement by the Filing Date, if the Registration Statement receives SEC review, then the Required Effective Date will be the 120th day after the Closing Date. The Company's reasonable commercial efforts will include, but not be limited to, promptly responding to all comments received from the staff of the SEC. If the Company receives notification from the SEC that the Registration Statement will receive no action or review from the SEC, then the Company will, subject to its rights under Section 5.2, use its commercially reasonable efforts to cause the Registration Statement to become effective within five (5) business days after such SEC notification.
(c) Use its reasonable commercial efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus used in connection therewith as soon may be necessary to keep the Registration Statement current and effective for a period not exceeding, with respect to each Investor's Shares purchased hereunder, the earliest of (i) the second anniversary of the date of effectiveness of the Registration Statement with respect to the Shares, (ii) the date on which the Investor may sell all Shares then held by the Investor, without registration or without regard to any volume limitations by reason of Rule 144(k) of the Securities Act or (iii) such time as practicable following all Shares purchased by such request Investor in this Offering have been sold pursuant to a registration statement on Form S-3 Registration Statement (the "REGISTRATION PERIOD"). Thereafter, the Company shall be entitled to withdraw the Registration Statement and the Investors shall have no further right to offer or sell any of the Shares pursuant to the Registration Statement".
(d) Furnish to each Investor whose Shares are included in a Registration Statement, and to its legal counsel, (i) promptly after each document is prepared and publicly distributed, filed with the SEC or received by the Company, one copy of any Registration Statement filed pursuant to this Agreement and any amendments thereto, each Preliminary Prospectus and final Prospectus and each amendment or supplement thereto; and each letter written by or on behalf of the Company to the SEC and each item of correspondence from the SEC or the staff of the SEC, in each case relating to such Registration Statement (other than any portion of any item thereof which contains information for which the Company has sought confidential treatment); and (ii) such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of the Securities Act and of such other securities or Blue Sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses. The Company will promptly notify by facsimile each Investor whose Shares are included in any Registration Statement of the effectiveness of the Registration Statement and any post-effective amendment.
(e) Use its reasonable commercial efforts to (i) register and qualify the Shares covered by a Registration Statement under such other securities or Blue Sky laws of such jurisdictions as each Investor who holds (or has the right to hold) Shares being offered reasonably requests, (ii) prepare and file in those jurisdictions any amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain their effectiveness during the Registration Period, (iii) take any other actions necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take any other actions reasonably necessary or advisable to qualify the Shares for sale in such jurisdictions. Notwithstanding the foregoing, the Company is not required, in connection with such obligations, to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 5.1, (B) subject itself to general taxation in any such jurisdiction, (C) file a general consent to service of process in any such jurisdiction, (D) provide any undertakings that cause material expense or burden to the Company, or (E) make any change in its Certificate of Incorporation or By-laws, which Registration Statement shall not contain any untrue statement in each case the Board of material fact or omit Directors of the Company determines to state a material fact be contrary to the best interests of the Company and its stockholders.
(f) During the period when copies of the Prospectus are required to be stated thereindelivered under the Securities Act or the Exchange Act, file all documents required to be filed with the Commission pursuant to Section 13, 14 or necessary to make the statement therein, in light 15 of the circumstances Exchange Act within the time periods required by the Exchange Act and the rules and regulations promulgated thereunder.
(g) Bear all registration expenses in connection with the procedures in paragraphs (a) through (f) of this Section 5.1 and the registration of the Shares pursuant to the Registration Statement (excluding underwriting, brokerage and other selling commissions and discounts and the fees and expenses of counsel(s) to the Investors).
(h) Advise the Investors, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and it will promptly use its reasonable commercial efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(i) It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 5.1, that the Investor shall furnish to the Company such information regarding itself, the Shares to be sold by the Investor, and the intended method of disposition of such Shares as shall be required to effect the registration of the Shares, all of which information shall be furnished to the Company in writing specifically for use in the Registration Statement.
(j) The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period in which they were made, not misleading, the Company is obligated to enable the resale of the shares of Company Common Stock subject submit an acceleration request to the Transfer (the "Registrable Shares") by the Trust from time SEC shall be extended to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) the later ninetieth (90th) day after such SEC notification, or (ii) one hundred twenty (120) days after the initial filing of the third anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond with the Grace PeriodSEC. Notwithstanding the foregoing, (ii) such time as all Registrable the parties understand and agree that the offer and sale of Shares subject pursuant to the Transfer may immediately Registration Statement shall not be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;underwritten.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(aA) subject to receipt of necessary information from the Investors, prepare and file with the SEC, as soon as practicable, but in no event later than thirty (30) days after the Closing Date, a registration statement on Form S-3 (or, if requested the Company is ineligible to use Form S-3, then on Form S-1) (and it qualifies under applicable SEC rulesthe "Registration Statement") to undertake an S-3 registration enable the resale of the Shares by the Trust with regard Investors from time to time through the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions automated quotation system of the Exhibit A)Nasdaq Stock Market (or the facilities of any national securities exchange on which the Company's Common Stock is then traded) or in privately-negotiated transactions;
(B) use its reasonable efforts, subject to receipt of necessary information from the Trust Investors, to cause the Registration Statement to become effective as soon as practicable and within ninety (90) days after the Employees, Registration Statement is filed by the Company.
(C) use its reasonable efforts to prepare and file with the SEC as soon as practicable following such request a registration statement on Form S-3 (amendments and supplements to the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to and the Prospectus used in connection therewith as may be stated therein, or necessary to make keep the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement current and effective for a period not exceeding, with respect to be declared effective as promptly as possible after filing and to remain continuously effective until each Investor's Shares purchased hereunder, the earlier of (i) the later of the third second anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace PeriodClosing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without registration or without regard to any volume limitations by reason of Rule 144(k) of the Securities Act or (iii) such time as all Registrable Shares purchased by such Investor in this Offering have been sold pursuant to a registration statement.
(D) furnish to the Placement Agent and to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under receipt by the Securities Act, or (iii) Company of reasonable assurances from the closing Investor that the Investor will comply with the applicable provisions of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance to and of such Investor and is listed on a national other securities exchange or Nasdaqblue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(E) file documents required of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a)normal blue sky clearance in states specified in writing by the Investor, "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;provided, however, that the
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested as soon as reasonably practicable, but in no event later than thirty (30) days following the Closing Date, prepare and it qualifies under applicable SEC rules) file with the Commission the Registration Statement on Form S-3 relating to undertake an S-3 registration the sale of the Shares and the Warrant Shares by the Trust with regard Purchasers from time to time on the Voting Securities subject to Nasdaq National Market or the Transfer facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions;
(including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A)b) use its best efforts, subject to receipt of necessary information from the Trust and Purchasers, to cause the Employees, Commission to declare the Registration Statement effective within 60 days after the initial filing thereof;
(c) use its best efforts to promptly prepare and file with the SEC as soon as practicable following Commission such request a registration statement on Form S-3 (amendments and supplements to the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to and the prospectus used in connection therewith as may be stated therein, or necessary to make keep the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier earliest of (i) two years after the later of (a) the third anniversary effective date of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond (b) the Grace Period, exercise of all of the Warrants or (ii) such time as all Registrable the Shares subject to the Transfer may immediately be sold during any 90 day period and Warrant Shares become eligible for resale by non-affiliates pursuant to Rule 144 144(k) under the Securities Act, or ;
(iiid) furnish to each Purchaser with respect to the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been Shares and Warrant Shares registered under the Securities Act Registration Statement (and to each underwriter, if any, of such Shares and Warrant Shares) such number of copies of prospectuses and such other documents as such Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares and Warrant Shares by such Purchaser;
(e) file documents required of the Company for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (normal Blue Sky clearance in states specified in writing by the "Registration Period"). In the event Purchasers; provided, however, that Form S-3 is unavailable for such registration, the Company shall use such other form as not be required to qualify to do business or consent to service of process in any jurisdiction in which it is available for such a registration. For purposes not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraphs (a) through (e) of this Section 1.1(a)7.1 and the registration of the Shares and Warrant Shares pursuant to the Registration Statement, "Grace Period" other than fees and expenses, if any, of counsel or other advisers to the Purchasers or underwriting discounts, brokerage fees and commissions incurred by the Purchasers, if any;
(g) file a Form D with respect to the Shares and Warrant Shares as required under Regulation D and to provide a copy thereof to the Purchasers promptly after filing;
(h) issue a press release describing the transactions contemplated by this Agreement on the Closing Date; and
(i) make available, while the Registration Statement is effective and available for resale, its Chief Executive Officer and Chief Financial Officer for questions regarding information which the Purchasers may reasonably request in order to fulfill any due diligence obligation on their part. The Company understands that each Purchaser disclaims being an underwriter, but any Purchaser being deemed an underwriter shall mean a suspension under Section 1.2(b) and 1.2(c) in excess not relieve the Company of sixty (60) days in any obligations it has hereunder. A questionnaire related to the aggregate in any twelve month period of time;Registration Statement to be completed by each Purchaser is attached hereto as Appendix I.
Appears in 1 contract
Sources: Purchase Agreement (Datalink Corp)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested subject to receipt of necessary information from the Investors, prepare and file with the SEC, within fifteen (and it qualifies under applicable SEC rules15) Business Days after the Closing Date (the "REQUIRED FILING DATE"), a Registration Statement on Form S-3 to undertake an S-3 registration enable the resale of the Shares by the Trust with regard Investors from time to the Voting Securities subject to the Transfer time;
(including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A)b) use its best efforts, subject to receipt of necessary information from the Trust and Investors, to cause the Employees, prepare and file with the SEC Registration Statement to become effective as soon as practicable following such request a registration statement practicable, but in no event later than sixty (60) days after the Registration Statement is filed by the Company. If the Registration Statement (i) has not been filed by the Required Filing Date or (ii) has not been declared effective by the SEC on Form S-3 or before the date that is one hundred and twenty (120) days after the Closing Date (the "Registration StatementREQUIRED EFFECTIVE DATE"), which Registration Statement shall not contain any untrue statement of material fact the Company shall, on the Business Day immediately following the Required Filing Date or omit to state the Required Effective Date, as the case may be, and each 30th day thereafter, make a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject payment to the Transfer Investor as partial compensation for such delay (the "Registrable SharesLATE REGISTRATION PAYMENTS") equal to one percent (1%) of the purchase price paid for the Shares purchased by the Trust from time to time on Investor and not previously sold by the Nasdaq and use all reasonable efforts to cause such Investor until the Registration Statement to be is filed or declared effective by the SEC, as promptly as possible the case may be; provided, however, that in no event shall the payments made pursuant to this paragraph (b), if any, exceed in the aggregate five percent (5%) of such purchase price. Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid to the Investor by wire transfer or check within five Business Days after filing and to remain continuously effective until the earlier of (i) the later end of each thirty day period following the Required Effective Date or (ii) the effective date of the third Registration Statement;
(c) use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement current and effective for a period ending on the earlier of (i) the second anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace PeriodClosing Date, (ii) the date on which the Investor may sell Shares pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule ("RULE 144") or (iii) such time as all Registrable Shares subject purchased by such Investor in this Offering have been sold pursuant to a registration statement or Rule 144, and to notify each Investor promptly upon the Registration Statement and each post-effective amendment thereto, being declared effective by the SEC;
(d) furnish to the Transfer Investor such number of copies of the Registration Statement and the Prospectus (including supplemental prospectuses) as the Investor may immediately reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Investor; provided, however, that the Company shall not be sold during required to qualify to do business or consent to service of process in any 90 day period jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph (a) through (e) of this Section 6.1 and the registration of the Shares pursuant to the Registration Statement;
(g) advise the Investors, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and it will promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued; and
(h) with a view to making available to the Investor the benefits of Rule 144 and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to use its commercially reasonable efforts to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144 under the Securities Act, 144(k) or any other rule of similar effect or (iiiB) the closing of an acquisition such date as all of the Registrable Securities Investor's Shares shall have been resold; (ii) file with the SEC in exchange for publicly traded stock (i.e., stock that has been registered a timely manner all reports and other documents required of the Company under the Securities Act for issuance and under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor and is listed on of any rule or regulation of the SEC that permits the selling of any such Shares without registration. It shall be a national securities exchange or Nasdaq) condition precedent to the obligations of another entity (the "Registration Period"). In Company to take any action pursuant to this Section 6.1 that the event that Form S-3 is unavailable for Investor shall furnish to the Company such registrationinformation regarding itself, the Shares to be sold by Investor, and the intended method of disposition of such securities as shall be required to effect the registration of the Shares. The Company understands that the Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Investor is deemed an underwriter shall use such other form as is available for such a registration. For purposes not relieve the Company of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;obligations it has hereunder.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested subject to receipt of necessary information from the Purchaser, as promptly as practicable, but in no event later than fifteen days after the Closing Date (such date, a “Filing Date”) prepare and it qualifies under applicable SEC rules) file with the Commission the Registration Statement, which shall be on Form S-3, relating to undertake an S-3 registration the sale of the Shares and the Warrant Shares by the Trust Purchaser and the Other Purchasers in accordance with regard to the Voting Securities subject to the Transfer Plan of Distribution attached hereto as Appendix IV;
(including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A)b) use its commercially reasonable efforts, subject to receipt of necessary information from the Trust Purchaser, to cause the Commission to declare the Registration Statement effective within sixty (60) calendar days after the Filing Date (such date, the “Required Effective Date”); provided, however, that if the Company filed the Registration Statement by the Filing Date and the EmployeesRegistration Statement receives Commission review, then the Required Effective Date will be the one hundred fifth (105th) calendar day after the Filing Date. If the Registration Statement is (A) not filed with the Commission on or before the Filing Date or (B) not declared effective by the Commission on or before the earlier of (i) five Business Days after the Commission has advised the Company that no review will be made of the Registration Statement or that the Commission has no further comments on the Registration Statement and (ii) the Required Effective Date, or (iii) following the initial effectiveness of the Registration Statement, the Registration Statement becomes unavailable for sales thereunder other than as a result of a Suspension of less than 45 consecutive days or an aggregate of 70 days in any 365-day period (each, an “Event”), then, as relief for the damages to the Purchaser by reason of any such delay in or reduction of its ability to sell the Shares or Warrant Shares (which remedy shall not be exclusive of any other non-monetary remedies available at law or in equity), the Company shall pay to the Purchaser, for every thirty (30) days that such Event occurs and is continuing (or pro rata for any period of less than thirty (30) days), an amount in cash equal to: (i) the aggregate purchase price of such Purchaser’s Securities as reflected in SECTION 2 multiplied by (ii) 0.01. The foregoing liquidated damages shall constitute the sole monetary remedy available to the Purchaser upon the occurrence of an Event.
(c) provide copies to and permit ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC to review each Registration Statement and all amendments and supplements thereto no fewer than three (3) days prior to their filing with the Commission and not file any document to which such counsel reasonably objects;
(d) furnish to the Purchaser and its legal counsel promptly after the same is prepared and publicly distributed, filed with the Commission, or received by the Company (but not later than two (2) Business Days after the filing date, receipt date or sending date, as the case may be) one (1) copy of any Registration Statement and any amendment thereto, each preliminary prospectus and Prospectus and each amendment or supplement thereto, and each letter written by or on behalf of the Company to the Commission or the staff of the Commission, and each item of correspondence from the Commission or the staff of the Commission, in each case relating to such Registration Statement (other than any portion of any thereof which contains information for which the Company has sought confidential treatment);
(e) prior to any public offering of the Shares and the Warrant Shares, use commercially reasonable efforts to register or qualify such Shares and Warrant Shares for offer and sale under the securities or blue sky laws of such jurisdictions requested by the Purchasers and do any and all other commercially reasonable acts or things necessary or advisable to enable the distribution in such jurisdictions of the Shares and the Warrant Shares; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (i) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this clause (e), (ii) subject itself to general taxation in any jurisdiction where it would not otherwise be so subject but for this clause (e), or (iii) file a general consent to service of process in any such jurisdiction;
(f) use its commercially reasonable efforts to promptly prepare and file with the SEC as soon as practicable following Commission such request a registration statement on Form S-3 (amendments and supplements to the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to and the prospectus used in connection therewith as may be stated therein, or necessary to make keep the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) the later date on which the Shares and the Warrant Shares may be resold by the Purchasers without registration by reason of Rule 144(k) under the third anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended Securities Act; or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject and Warrant Shares purchased by such Purchaser under this Agreement have been sold. Thereafter, the Company shall be entitled to withdraw the Registration Statement and the Purchasers shall have no further right to offer or sell any of the Shares or Warrant Shares pursuant to the Transfer Registration Statement;
(g) furnish to the Purchaser with respect to the Shares and the Warrant Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares and Warrant Shares) such number of copies of prospectuses and such other documents as the Purchaser may immediately reasonably request, fulfill in all respects the condition specified in Rule 172(c)(3) under the Securities Act and notify the Purchaser when the conditions specified in Rule 172(c)(1) or Rule 172(c)(2) under the Securities Act are not satisfied;
(h) notify the Purchaser on the day that the Registration Statement or any post-effective amendment thereto is declared effective;
(i) notify the Purchaser, at any time when a prospectus relating to the Shares or the Warrant Shares is required to be sold during any 90 day period pursuant to Rule 144 delivered under the Securities Act, or (iii) on the closing of an acquisition day of the Registrable Securities happening of any event as a result of which the prospectus included in the Registration Statement contains an untrue statement of a material fact or omits any fact necessary to make the statements in the prospectus not misleading; and prepare a supplement or amendment to the prospectus so that, when delivered to purchasers of the Shares or the Warrant Shares, the prospectus, as supplemented or amended, does not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements in the prospectus not misleading, and notify the Purchaser on the day of the filing of such supplement or amendment;
(j) cause all such Shares and Warrant Shares to be quoted on the Nasdaq National Market and listed on any other exchange on which the Company’s shares of common stock are listed;
(k) upon execution of a nondisclosure agreement, in form reasonably satisfactory to the Company, by each person to whom information will be disclosed, make available for publicly traded stock inspection by each Purchaser, any underwriter participating in any disposition pursuant to the Registration Statement and any attorney, accountant or other agent retained by any Purchaser or any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, employees and independent accountants to supply all information reasonably requested by any Purchaser or any such underwriter, attorney, accountant or agent in connection with the Registration Statement;
(i.e.l) in the event of the issuance of any stop order suspending the effectiveness of the Registration Statement, stock that has been registered under or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any securities included in the Registration Statement for sale in any jurisdiction, notify each Purchaser on the day of such issuance, use its commercially reasonable best efforts promptly to obtain the withdrawal of such order, and notify each Purchaser on the day of such withdrawal;
(m) file a Form D with respect to the Securities Act for issuance as required under Regulation D and provide a copy thereof to such Investor and is listed the Purchaser promptly upon request by the Purchaser;
(n) issue a press release describing the transactions contemplated by this Agreement on a national securities exchange the Closing Date;
(o) bear all expenses in connection with the Company’s performance of or Nasdaqcompliance with paragraphs (a) through (n) of another entity this SECTION 7.1 and the Company’s registration of the Shares pursuant to the Registration Statement (other than fees and expenses, if any, of legal counsel (subject to Section 19 hereof) or other advisers to the "Registration Period"Purchasers or underwriting discounts, brokerage fees and commissions incurred by the Purchasers, if any). In The Company understands that the event Purchaser disclaims being an underwriter, but the Purchaser being deemed an underwriter shall not relieve the Company of any obligations it has hereunder. Notwithstanding the foregoing, the parties understand and agree that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes not be obligated to retain an underwriter with respect to the offer and sale of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) Shares and 1.2(c) in excess of sixty (60) days in Warrant Shares pursuant to the aggregate in any twelve month period of time;Registration Statement.
Appears in 1 contract
Sources: Purchase Agreement (Metasolv Inc)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, prepare and Company shall file with the SEC as soon as practicable following such request a registration statement on Form S-3 SB-2, or such other form as appropriate ("REGISTRATION STATEMENT"), the resale pursuant to Rule 415 under the Securities Act of the Note Shares and Warrant Shares (the "REGISTRABLE SECURITIES") by the Purchaser from time to time on the facilities of any securities market on which shares of the Common Stock are then traded or in privately-negotiated transactions, and specifically excluding underwritten offerings;
(b) if: (i) a Registration StatementStatement is not filed on or prior to the 45th day following the Closing Date, or (ii) a Registration Statement is not declared effective by the SEC on or prior to the 90th day following the Closing Date, or (iii) after the SEC first declares a Registration Statement effective, without regard for the reason thereunder or efforts therefore, such Registration Statement ceases for any reason to be effective and available to the holders of the Registrable Securities as to all Registrable Securities registered under such Registration Statement at any time prior to the earlier date when the Registrable Securities have been sold or may be sold without volume restrictions pursuant to Rule 144(k) as determined by counsel to the Company, for more than an aggregate of 20 Trading Days in any twelve month period (which need not be consecutive) (any such failure or breach being referred to as an "EVENT," and for purposes of clauses (i) or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date which such 20 Trading Day period is exceeded, being referred to as "EVENT DATE"), which Registration Statement then on each such Event Date, and on the same day as such Event Date in each subsequent month until the applicable Event is cured (the Event Date and each such subsequent date, a "PAYMENT DATE") the Company shall pay to each holder an amount, as partial liquidated damages and not contain as a penalty, equal to 2.0% of the Purchase Price paid by such holder for Securities at closing pursuant to this Securities Purchase Agreement, such payment being 1% in cash and 1% in Common Stock, PROVIDED, that in the event the Company fails to deliver such Common Stock by the 10th Trading Day following such Payment Date, such payment shall be, at the discretion of the Holder, in all cash. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 10% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall 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. Liquidated damages payable in Common Stock pursuant to this section shall be determined by calculating the quotient of the dollar amount of such liquidated damages divided by either (1) the average of the closing bid prices of the Common Stock for the five (5) Trading Days prior to the Payment Date and (2) the closing bid price of the Common Stock on the day preceding the date such Common Stock is delivered pursuant to this SECTION 7(B), whichever of (1) and (2) yields a greater number of shares;
(c) The Company shall, notwithstanding any termination of this Agreement, indemnify and hold harmless each Purchaser and the officers, directors, agents and employees of each such Purchaser, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable costs of preparation and reasonable attorneys' fees) and expenses (collectively, "LOSSES"), as incurred, arising out of or relating to any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus or omit any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to state any omission or alleged omission of a material fact required to be stated therein, therein or necessary to make the statement thereinstatements therein (in the case of any Prospectus or form of prospectus or supplement thereto, in light of the circumstances in under which they were made, ) not misleading, except to enable the resale extent, but only to the extent, that (1) such untrue statements or omissions are based solely upon information regarding such Purchaser furnished in writing to the Company by such Purchaser expressly for use therein, or to the extent that such information relates to such Purchaser or such Purchaser's proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Purchaser expressly for use in the Registration Statement, such Prospectus or such form of prospectus or in any amendment or supplement thereto or (2) the use by such Purchaser of an outdated or defective prospectus after the Company has notified such Purchaser in writing that the Prospectus is outdated or defective and prior to the receipt by such Purchaser of an advice or an amended or supplemented prospectus.
(d) Each Purchaser shall, severally and not jointly, indemnify and hold harmless the Company, its directors, officers, agents and employees, and each person who controls the Company, to the fullest extent permitted by applicable law, from and against all Losses, as incurred, arising solely out of or based solely upon: (x) such Purchaser's failure to comply with the prospectus delivery requirements of the shares Securities Act or (y) any untrue statement of Company Common Stock subject a material fact contained in any Registration Statement, any prospectus, or any form of prospectus, or in any amendment or supplement thereto, or arising solely out of or based solely upon any omission of a material fact required to be stated therein or necessary to make the statements therein not misleading to the Transfer extent, but only to the extent that, (1) such untrue statements or omissions are based solely upon information regarding such Purchaser furnished in writing to the Company by such Purchaser expressly for use therein, or to the extent that such information relates to such Purchaser or such Purchaser's proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Purchaser expressly for use in the Registration Statement, such prospectus or such form of prospectus or in any amendment or supplement thereto or (2) the use by such Purchaser of an outdated or defective prospectus after the Company has notified such Purchaser in writing that the Prospectus is outdated or defective and prior to the receipt by such Purchaser of an advice or an amended or supplemented prospectus.
(e) If any proceeding shall be brought or asserted against any person entitled to indemnity hereunder (an "INDEMNIFIED PARTY"), such Indemnified Party shall promptly notify the person from whom indemnity is sought (the "Registrable SharesINDEMNIFYING PARTY") in writing, and the Indemnifying Party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with defense thereof; provided, that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have proximately and materially adversely prejudiced the Trust Indemnifying Party. An Indemnified Party shall have the right to employ separate counsel in any such proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such fees and expenses; (2) the Indemnifying Party shall have failed promptly to assume the defense of such proceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any such proceeding; or (3) the named parties to any such proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and such Indemnified Party shall have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and such counsel shall be at the expense of the Indemnifying Party). The Indemnifying Party shall not be liable for any settlement of any such proceeding effected without its written consent, which consent shall not be unreasonably withheld. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending proceeding in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from time all liability on claims that are the subject matter of such proceeding. All reasonable fees and expenses of the Indemnified Party (including reasonable fees and expenses to time on the Nasdaq extent incurred in connection with investigating or preparing to defend such proceeding in a manner not inconsistent with this Section) shall be paid to the Indemnified Party, as incurred, within fifteen (15) Trading Days of written notice thereof to the Indemnifying Party (regardless of whether it is ultimately determined that an Indemnified Party is not entitled to indemnification hereunder; provided, that the Indemnifying Party may require such Indemnified Party to undertake to reimburse all such fees and use all reasonable efforts expenses to cause the extent it is finally judicially determined that such Indemnified Party is not entitled to indemnification hereunder). The indemnity agreements contained in this SECTION 7 are in addition to any liability that the Indemnifying Parties may have to the Indemnified Parties.
(f) prepare and file with the Commission such amendments and supplements to the Registration Statement and the prospectus used in connection therewith as may be necessary to be declared effective as promptly as possible after filing and to remain continuously keep the Registration Statement effective until the earlier of (i) the later of the third second anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace PeriodClosing Date, (ii) the date on which the Purchaser may sell all the Note Shares or Warrant Shares then held by the Purchaser within a three-month period in accordance with Rule 144 under the Securities Act ("RULE 144"), or (iii) such time as all Registrable the Note Shares subject and Warrant Shares which the Purchaser has a right to acquire have been sold pursuant to a registration statement;
(g) so long as the Registration Statement is effective covering the resale of the Note Shares and Warrant Shares owned by the Purchaser, furnish to the Transfer Purchaser with respect to the Note Shares and Warrant Shares registered under the Registration Statement such reasonable number of copies of prospectuses and such other documents as the Purchaser may immediately reasonably request, in order to facilitate the public sale or other disposition of all or any of the Note Shares and Warrant Shares by the Purchaser;
(h) file documents required of the Company for blue sky clearance in states specified in writing by the Purchaser; provided, however, that the Company shall not be sold during required to qualify to do business or consent to service of process in any 90 day jurisdiction in which it is not so qualified or has not so consented;
(i) with a view to making available to the Purchaser the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the Commission that may at any time permit the Purchaser to sell the Note Shares and Warrant Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Purchaser's Note Shares and Warrant Shares may be resold within a given three-month period pursuant to Rule 144 under the Securities Act, or any other rule of similar effect or (iiiB) the closing of an acquisition such date as all of the Registrable Securities Purchaser's Shares shall have been resold and (ii) file with the Commission in exchange for publicly traded stock (i.e., stock that has been registered a timely manner all reports and other documents required of the Company under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (under the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;Exchange Act.
Appears in 1 contract
Sources: Securities Purchase Agreement (Markland Technologies Inc)
Registration Procedures and Expenses. The Company hereby agrees that it If and whenever Purchaser is required to include the Stock Consideration in a registration statement under the Securities Act, as provided in Section 11.4 hereof, Purchaser shall, as expeditiously as is reasonably practicable, do each of the following:
(ai) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, prepare and file with the SEC as soon as practicable following such request a registration statement on Form S-3 with respect to the Stock Consideration and, subject to the limitations under Section 11.4 hereof, use its best efforts to cause such registration statement to become effective;
(ii) cooperate with Sellers and any underwriter who shall sell the "Registration Statement"Stock Consideration in connection with their review of Purchaser made in connection with such registration;
(iii) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for 120 days from the date of its effectiveness, and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all the Stock Consideration covered by such registration statement for such period;
(iv) furnish to Sellers such number of copies of the prospectus forming a part of such registration statement (including each preliminary prospectus), in conformity with the requirements of the Securities Act, and such other documents as Sellers may reasonably request in order to facilitate the disposition of the Stock Consideration; and
(v) Purchaser shall (x) notify Sellers at any time when a prospectus relating to the Stock Consideration is required to be delivered under the Securities Act, of the happening of any event as a result of which Registration Statement the prospectus forming a part of such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and (y) prepare and furnish to Sellers a reasonable number of copies as Sellers may reasonably request of any supplement to or any amendment of such prospectus that may be necessary so that, as thereafter delivered to the purchasers of the Stock Consideration such prospectus shall not contain include any untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statement therein, statements therein not misleading in the light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) the later of the third anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;then existing.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested subject to receipt of necessary information from the Investors, prepare and file with the SEC, as soon as practicable, but in no event later than ten (and it qualifies under applicable SEC rules10) business days after the Closing Date, a registration statement on Form S-3 (the "REGISTRATION STATEMENT") to undertake an S-3 registration enable the resale of the Shares by the Trust with regard Investors from time to time through the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions automated quotation system of the Exhibit A)Nasdaq Stock Market or in privately-negotiated transactions;
(b) use its best efforts, subject to receipt of necessary information from the Trust Investors, to cause the Registration Statement to become effective as soon as practicable, but shall in any event exercise its best efforts to cause the Registration Statement to become effective no later than sixty (60) days after the Registration Statement is filed by the Company. If the Registration Statement has not been declared effective by the SEC on or before the date that is 90 days after the Closing Date, the Company shall, on the 91st day after the Closing Date and each 30th day thereafter, issue to the EmployeesInvestor ..01 additional shares of Common Stock (which shall be deemed to be Shares), up to a maximum of .09 additional shares of Common Stock, for every Share purchased in the Offering until the Registration Statement is declared effective by the SEC (rounded up to the nearest Share after aggregating all Shares held by the Investor);
(c) use its reasonable efforts to prepare and file with the SEC as soon as practicable following such request a registration statement on Form S-3 (amendments and supplements to the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to and the Prospectus used in connection therewith as may be stated therein, or necessary to make keep the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement current and effective for a period not exceeding, with respect to be declared effective as promptly as possible after filing and to remain continuously effective until each Investor's Shares purchased hereunder, the earlier of (i) the later of the third second anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace PeriodClosing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act or (iii) such time as all Registrable Shares purchased by such Investor in this Offering have been sold;
(d) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses (including supplemental prospectuses) and preliminary versions of the Prospectus filed with the Securities Exchange Commission ("PRELIMINARY PROSPECTUSES") in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that unless waived by the Company in writing, the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the Transfer receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may immediately be sold during applicable in connection with any 90 day period use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky clearance in states reasonably specified in writing by the Investor prior to the effectiveness of the Registration Statement, provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses (other than professional fees incurred by the Investors and underwriting discounts and commissions, if any) in connection with the procedures in paragraph (a) through (e) of this Section 6.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investors, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and it will promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144 under the Securities Act, 144(k) or any other rule of similar effect or (iiiB) the closing of an acquisition such date as all of the Registrable Securities Investor's Shares shall have been resold; (ii) file with the SEC in exchange for publicly traded stock (i.e., stock that has been registered a timely manner all reports and other documents required of the Company under the Securities Act for issuance and under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor and is listed on of any rule or regulation of the SEC that permits the selling of any such Shares without registration. It shall be a national securities exchange or Nasdaq) condition precedent to the obligations of another entity (the "Registration Period"). In Company to take any action pursuant to this Section 6.1 that the event that Form S-3 is unavailable for Investor shall furnish to the Company such registrationinformation regarding itself, the Shares to be sold by Investor, and the intended method of disposition of such securities as shall be required to effect the registration of the Shares. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall use such other form as is available for such a registration. For purposes not relieve the Company of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;obligations it has hereunder.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shallis obligated to do the following:
(a) if requested (and it qualifies under applicable SEC rules) The Company shall use its commercially reasonable efforts to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, prepare and file with the SEC as soon as practicable following such request Commission, not later than the second business day after the date on which the Company files its annual report on Form 10-K for its fiscal year ending December 31, 2007 with the SEC, a registration statement on Form S-3 (or such other registration form that the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit Company may then be eligible to state a material fact required use) in order to be stated therein, or necessary to make register with the statement therein, in light of the circumstances in which they were made, not misleading, to enable Commission the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust Purchasers, from time to time time, of the Shares through the Principal Market or the facilities of any national securities exchange on which the Nasdaq and Company’s Common Stock is then traded, or in privately-negotiated transactions (a “Registration Statement”). The Company shall use all its commercially reasonable efforts to cause such Registration Statement to be declared effective as promptly soon thereafter as possible after filing reasonably practicable.
(b) If such a Registration Statement has been filed, the Company shall use its commercially reasonable efforts to prepare and to remain continuously effective until file with the earlier of Commission (i) the later of the third anniversary of the Transfer, plus, in each case, a number of days equal such amendments and supplements to the number of days, if any, the Registration Statement is suspended or not effective beyond and the Grace Periodprospectus used in connection therewith, (ii) such SEC reports and (iii) such other filings required by the Commission, in each case as may be necessary to keep the Registration Statement effective and not misleading until the earliest of (A) the second anniversary date of the Closing Date, or (B) such time as all Registrable of the Shares subject to held by the Transfer may immediately Purchasers can be sold during any 90 day within a given three-month period pursuant to Rule 144 under the Securities Act. Notwithstanding the foregoing, following the effectiveness of the Registration Statement, the Company may, at any time, suspend the effectiveness of the Registration Statement for up to 60 days, as appropriate (a “Suspension Period”), by giving notice to the Purchasers, if the Company shall have determined that the Company may be required to disclose any material corporate development. Notwithstanding the foregoing, the Company may not suspend the effectiveness of the Registration Statement more than twice during any twelve-month period. Each Purchaser agrees that, upon receipt of any notice from the Company of a Suspension Period, such Purchaser will not sell any Shares pursuant to the Registration Statement until (i) such Purchaser is advised in writing by the Company that the use of the applicable prospectus may be resumed, (ii) such Purchaser has received copies of any additional or supplemental or amended prospectus, if applicable, and (iii) such Purchaser has received copies of any additional or supplemental filings which are incorporated or deemed to be incorporated by reference in such prospectus.
(c) In order to facilitate the closing public sale or other disposition of an acquisition all or any of the Registrable Shares by each Purchaser, the Company shall furnish to each Purchaser with respect to the Shares registered under the Registration Statement such number of copies of prospectuses, prospectus supplements and preliminary prospectuses as such Purchaser reasonably requests in conformity with the requirements of the Securities Act.
(d) The Company shall file any documents required of the Company for normal blue sky clearance in exchange for publicly traded stock states specified in writing by each Purchaser; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented.
(i.e.e) Other than fees and expenses, stock that has been registered if any, of counsel or other advisers to the Purchasers, which fees and expenses shall be borne by the Purchasers, the Company shall bear all expenses (exclusive of any brokerage fees, underwriting discounts and commissions) in connection with the procedures in paragraphs (a) through (d) of this Section 8.1.
(f) With a view to making available to the Purchasers the benefits of Rule 144 promulgated under the Securities Act for issuance (“Rule 144”) and any other rule or regulation of the Commission that may at any time permit a Purchaser to such Investor and is listed on a national securities exchange sell Shares to the public without registration or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such pursuant to registration, the Company covenants and agrees to use its commercially reasonable efforts to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) the second anniversary of the Closing Date or (B) such date as all of the Shares shall use have been resold; (ii) file with the Commission in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish to any Purchaser upon request, as long as the Purchaser owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (B) a copy of the most recent annual or quarterly report of the Company, and (C) such other form information as is available for may be reasonably requested in order to avail any Purchaser of any rule or regulation of the Commission that permits the selling of any such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension Shares without registration under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;Securities Act.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Corcept Therapeutics Inc)
Registration Procedures and Expenses. The Company hereby Buyer agrees that after the filing of the Registration Statement it shallwill:
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement effective until the Buyer Common Stock so registered and qualified is no longer owned by Shareholder or until the expiration of a period of one year following the Closing Date, whichever is earlier.
(b) if the Registration Statement ceases for any reason to be effective during the period referred to in clause (a), take all reasonable action to either make such Registration Statement effective or to file another registration statement (which for purposes of this Agreement shall be the "Registration Statement" and the related prospectus shall be the "Prospectus") and use it best efforts to cause such registration statement to become effective as soon as practicable following such request a registration statement on Form S-3 and remain effective for the period referred to in clause (the "Registration Statement"a);
(c) deliver to Shareholder, which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly soon as possible after filing and to remain continuously effective until the earlier of (i) the later of the third anniversary of the Transfer, plus, in each caseit is available, a number conformed copy of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Period, (iiincluding any preliminary prospectus) such time as all Registrable Shares subject originally filed and of each amendment thereto (including exhibits and documents incorporated by reference therein);
(d) furnish to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been Shareholder selling Buyer Common Stock so registered under the Securities Act for issuance to such Investor number of copies of the Prospectus and is listed on a national securities exchange any amendments or Nasdaq) of another entity supplements thereto (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(bincluding all Exhibits thereto and all documents incorporated by reference therein) and 1.2(cthe Prospectus included in such Registration Statement (including each preliminary prospectus) as the Shareholder may reasonably request in order to effect the offering and sale of the shares of Buyer Common Stock to be offered and sold); and
(e) pay all fees and expenses (including without limitation registration and filing fees and legal, accounting and printing fees and expenses but excluding selling fees, discounts and commissions with respect to the sale of Buyer Common Stock and any out-of-pocket expenses of the Shareholder) in excess of sixty (60) days in the aggregate in any twelve month period of time;connection with such registration or qualification.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested The Company shall as soon as practicable after Closing, but in no event later than thirty (and it qualifies under applicable SEC rules30) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employeesdays thereafter, prepare and file with the SEC as soon as practicable following such request Commission a registration statement on Form S-3 (or if such form is unavailable to the Company, on such other form deemed appropriate for the registration of the Common Stock by the Commission) (the "Registration Statement")) to register the Shares and Warrant Shares (collectively, which the "Registrable Shares") for resale by the Purchasers in non-underwritten, market transactions, and shall use its best efforts to cause the Registration Statement to become effective as soon as practicable thereafter. The Company shall, at least three (3) business days before filing such Registration Statement, provide a draft to each Purchaser and its counsel and its agent for review. The Company shall use its best efforts to cause the Registration Statement to become effective within ninety (90) days after the Closing or, if the Registration Statement or any periodic report of the Company filed pursuant to the Exchange Act is selected for a review by the Commission, within one hundred twenty (120) days after the Closing;
(b) The Company shall promptly prepare and file with the Commission such amendments and supplements to the Registration Statement and the prospectus used in connection therewith as may be necessary to keep such the Registration Statement effective until such date when either all of the Registrable Shares have been sold pursuant thereto or, by reason of Rule 144(k) of the Commission under the Securities Act or any other rule of similar effect, the Registrable Shares may be sold by the Purchasers in ordinary market transactions without registration and without compliance with of any volume limitations (the "Registration Period");
(c) The Company shall promptly furnish to each Purchaser and its agent such number of copies of prospectuses and preliminary prospectuses in conformity with the requirements of the Securities Act as such Purchaser or its agent may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by such Purchaser;
(d) The Company shall promptly file documents required of the Company for any required blue sky clearance for the Registrable Shares in such states specified in writing by each Purchaser or its agent; provided, however, that the Company shall not contain be required to (i) qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented, (ii) subject itself to general taxation in any such jurisdiction, (iii) provide any undertakings that cause the Company undue burden or expense or (iv) make any change in its charter or bylaws;
(e) The Company shall promptly inform each Purchaser and its agent when any stop order has been issued with respect to the Registration Statement and use its commercially practical best efforts to promptly cause such stop order to be withdrawn;
(f) The Company shall notify each Purchaser whose Registrable Shares are registered on a Registration Statement and its agent at any time when a prospectus relating to any Registrable Shares covered by such Registration Statement or a Company Registration Statement is required to be delivered under the Securities Act, 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 promptly file such amendments and supplements as may be necessary so that, as thereafter delivered to such Purchasers of such Registrable Shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statement therein, statements therein not misleading in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq then existing and use all reasonable its best commercially practical efforts to cause each such amendment and supplement to become effective;
(g) The Company shall bear all expenses in connection with the procedures in clauses (a) through (f) in this Section 7.1 and the registration of the Registrable Shares pursuant to the Registration Statement, other than fees and expenses, if any, of counsel or other advisers to the Purchaser or the Other Purchasers and any expenses relating to the sale of the Registrable Shares by the Purchasers (including without limitation, broker's commissions, discounts or fees of any nature and transfer taxes or charges of any nature); and
(h) The Company understands that each Purchaser disclaims being an underwriter, but a Purchaser being deemed an underwriter shall not relieve the Company of any obligations it has hereunder. A questionnaire related to the Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) the later of the third anniversary of the Transfer, plus, in completed by each case, a number of days equal to the number of days, if any, the Registration Statement Purchaser is suspended or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance to such Investor and is listed set forth on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;Appendix I.
Appears in 1 contract
Registration Procedures and Expenses. (i) The Company hereby agrees that it shallshall prepare and file with the SEC, as promptly as reasonably practicable following Closing, but in no event later than 180 days following Closing (the “Filing Date”), a registration statement on Form S-1, covering the resale of theWarrant Shares (the “Registrable Securities” and the “Registration Statement”) and shall use its commercially reasonable efforts to have the Registration Statement declared effective within 270 days after the Closing.
(ii) The Company shall use its commercially reasonable best efforts to:
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, prepare and file with SEC such amendments and supplements to the SEC as soon as practicable following such request a registration statement on Form S-3 Registration Statement and the prospectus forming part thereof (the "Registration Statement"), which “Prospectus”) used in connection therewith as may be necessary or advisable to keep the Registration Statement shall not contain any untrue statement of material fact or omit to state current and effective for the Registrable Securities held by a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time Purchaser for a period ending on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier earliest of (i) the later of the third second anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace PeriodClosing Date, (ii) such time as the date on which all Registrable Shares subject to the Transfer Securities may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, Act or any successor rule (“Rule 144”) during any three-month period without the requirement for the Company to be in compliance with the current public information required under Rule 144(c)(1) or (iii) such time as all Registrable Securities have been sold pursuant to a registration statement or Rule 144. The Company shall notify each Purchaser promptly upon the closing Registration Statement and each post-effective amendment thereto, being declared effective by the SEC and advise each Purchaser that the form of an acquisition Prospectus contained in the Registration Statement or post-effective amendment thereto, as the case may be, at the time of effectiveness meets the requirements of Section 10(a) of the Securities Act or that it intends to file a Prospectus pursuant to Rule 424(b) under the Securities Act that meets the requirements of Section 10(a) of the Securities Act; ________ Subscription Agreement Purchaser’s Initials 2 Generation Hemp, Inc.
(b) furnish to the Purchaser with respect to the Registrable Securities registered under the Registration Statement such number of copies of the Registration Statement and the Prospectus (including supplemental prospectuses) filed with the SEC in conformance with the requirements of the Securities Act and other such documents as the Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities by the Purchaser;
(c) pay the expenses incurred by the Company in complying with this Section, including, all registration and filing fees, FINRA fees, exchange listing fees, printing expenses, fees and disbursements of counsel for publicly traded stock the Company, blue sky fees and expenses and the expense of any special audits incident to or required by any such registration (i.e.but excluding attorneys’ fees of any Purchaser and any and all underwriting discounts and selling commissions applicable to the sale of Registrable Securities by the Purchasers);
(d) advise the Purchasers, stock promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that has purpose; and it will promptly use its commercially reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued; and
(e) with a view to making available to the Purchaser the benefits of Rule 144 and any other rule or regulation of the SEC that may at any time permit the Purchaser to sell Registrable Securities to the public without registration, the Company covenants and agrees to use its commercially reasonable efforts to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Registrable Securities qualify to be resold immediately pursuant to Rule 144 or any other rule of similar effect during any three-month period without the requirement for the Company to be in compliance with the current public information required under Rule 144(c)(1) or (B) such date as all of the Registrable Securities shall have been registered resold pursuant to Rule 144 (and may be further resold without restriction); (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act for issuance and under the Exchange Act; and (iii) furnish to the Purchaser upon request, as long as the Purchaser owns any Registrable Securities, (A) a written statement by the Company as to whether it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such Investor other information as may be reasonably requested in order to avail the Purchaser of any rule or regulation of the SEC that permits the selling of any such Registrable Securities without registration.
(iii) The Purchaser agrees and confirms that a requirement to the Company including such Purchaser’s Registrable Securities in the Registration Statement is listed on a national that the Purchaser will work in good faith with the Company to supply the Company with any and all information the Company may reasonably request from the Purchaser from time to time in connection with the preparation of the Registration Statement, including, customary and reasonable representations and confirmations regarding the Warrant Shares held by the Purchasers, information relating to the beneficial ownership of other securities exchange of the Company held by such Purchaser and its affiliates, information regarding the persons with voting and dispositive control over the Purchaser and such other information as the Company or Nasdaq) of another entity its legal counsel may reasonably request (which requirement may be waived by the "Registration Period"Company). In ________ Subscription Agreement Purchaser’s Initials 3 Generation Hemp, Inc.
(iv) The Purchasers acknowledge and understand that the Filing Date shall be extended in the event the Company is currently in the process of undertaking and/or is currently contemplating an offering by the Company of securities for its own account if the managing underwriter or placement agent shall have advised the Company in writing that Form S-3 is unavailable such Registration Statement or the inclusion of such Registrable Securities in such registration statement will have a material adverse effect upon the ability of the Company to sell securities for its own account, and provided further that the Purchasers are not treated less favorably than others seeking to have their securities included in such registrationregistration statement. Notwithstanding the obligations set forth above, if any SEC guidance sets forth a limitation on the number of securities permitted to be registered on the Registration Statement (including any other securities included by the Company in such Registration Statement; provided further that the Company shall not be prohibited from including other securities on such Registration Statement), the number of Registrable Securities to be included on such Registration Statement for the benefit of the Purchasers will be reduced pro rata between the Purchasers (or other parties) whose securities are included in such Registration Statement and the Company; provided further that the Company shall take action to file additional registration statements at the written request of the holders of a majority in interest of the Shares sold in the Offering after the effectiveness of the Registration Statement, subject to SEC rules and guidance and the requirements set forth above, provided, however, that the Company shall not be required to file more than one additional Registration Statement in any rolling six (6) month period. Notwithstanding the above, the Purchasers agree that the Company shall not be required to register securities totaling more than 1/3rd of its then public float on the Registration Statement. Further notwithstanding the above, the Company shall use may at any time take action to register the Warrant Shares under the Securities Act and the Purchasers agree to take reasonable actions and provide the Company reasonable information to facilitate any such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shall:
: within fourteen (a14) if requested days immediately following each Closing, such actual date being referred to as the "Registration Date," prepare and file with the SEC a registration statement on Form S-3 in order to register with the SEC under the Securities Act a sale by CELL GENESYS on a delayed or continuous basis pursuant to Rule 415 under the Securities Act any or all of the Registrable Shares then issued at such Closing through the automated quotation system of the Nasdaq National Market System or the facilities of any national securities exchange on which the Company's Common Stock is then traded, or in privately-negotiated transactions (and it qualifies under applicable SEC rulesa "Registration Statement") to undertake an S-3 registration by the Trust with regard (notwithstanding anything to the Voting Securities subject to contrary expressed or implied herein, if a registration statement on Form S-3, or any substitute form, is not then available for registration of the Transfer (includingRegistrable Shares, the Employee Company shall be obligated instead to prepare and file with the SEC a registration statement on Form S-1 in order to register the Registrable Shares should under the Employees execute Securities Act and such registration statement will be a joinder agreeing to be bound by "Registration Statement" for the terms and provisions purposes of the Exhibit Athis Agreement), ; subject to receipt of necessary information from the Trust and the EmployeesCELL GENESYS, prepare and file with the SEC as soon as practicable following such request a registration statement on Form S-3 (the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable its commercially reasonably efforts to cause such Registration Statement to be declared become effective as promptly soon as possible after filing the Registration Date, and take all other reasonable actions necessary under any federal law or regulation to remain continuously effective until the earlier permit all Registrable Shares to be sold or otherwise disposed of (i) the later of the third anniversary of the Transferthereunder; promptly notify CELL GENESYS, plus, in each case, at any time when a number of days equal prospectus relating to the number of days, if any, the such Registration Statement is suspended or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject required to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in or (iii) relating to such Registration Statement contains an Untrue Statement; promptly prepare and file with the closing SEC, and deliver to CELL GENESYS, such amendments and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective until termination of an acquisition such obligation as provided in Section 8.7 below; furnish to CELL GENESYS such number of copies of prospectuses in conformity with the requirements of the Securities Act, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities Shares by CELL GENESYS; file such documents as may be required of the Company for normal state securities law clearance for the resale of the Registrable Shares in exchange for publicly traded stock (i.e.which states of the United States as may be reasonably requested by CELL GENESYS provided, stock however, that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form not be required in connection with this paragraph (f) to qualify as is available for such a registration. For purposes foreign corporation or execute a general consent to service of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate process in any twelve month period jurisdiction; [*] Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. no later than the Registration Date, use its best efforts to cause all Registrable Shares to be listed on each securities exchange, if any, on which equity securities by the Company are then listed; and bear all expenses in connection with the procedures in Section 8.2, other than (i) fees and expenses, if any, of time;counsel or other advisers to CELL GENESYS, and (ii) any expenses relating to the sale of the Registrable Shares by CELL GENESYS, including broker's commission, discounts or fees and transfer taxes.
Appears in 1 contract
Sources: License Agreement (Cell Genesys Inc)
Registration Procedures and Expenses. (a) The Company hereby agrees that it shall:
(ai) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the EmployeesInvestor, prepare and file with the SEC SEC, as soon as practicable following such request after the Second Closing Date or, if the Second Closing Date shall not occur, as soon as practicable after the provisions of the Agreement relating to the Second Closing have been terminated pursuant to Section 4.12 or 9.4 thereof, a registration statement on Form S-3 (the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, ) to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") Shares by the Trust Investor from time to time on through the automated quotation system of the Nasdaq and Stock Market or in privately-negotiated transactions;
(ii) (A) use all its reasonable efforts best efforts, subject to receipt of necessary information from the Investor, to cause such the Registration Statement to become effective no event later than sixty (60) days after the Registration Statement is filed by the Company, and (B) within five (5) days after the receipt of a no review letter from the SEC, take all appropriate measures necessary to cause the Registration Statement to become effective;
(iii) use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus which forms a part thereof (the "Prospectus") as may be declared necessary to keep the Registration Statement current and effective as promptly as possible after filing and for a period not exceeding, with respect to remain continuously effective until the Investor's Shares, the earlier of (i) the later of the third anniversary of the Transfer, plusdate on which, in each case, a number the opinion of days equal counsel to the number of days, if anyCompany, the Registration Statement is suspended or not effective beyond Investor may sell all Shares then held by the Grace Period, (ii) such time as all Registrable Shares subject to the Transfer may immediately be sold during Investor in any 90 90-day period pursuant to Rule 144 under the Securities Act, Act (without restriction by the volume limitations of Rule 144(e)) or (iiiii) such time as all Shares purchased by the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has Investor have been registered sold pursuant to a registration statement under the Securities Act or pursuant to Rule 144;
(iv) furnish to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses (including supplemental prospectuses) and preliminary versions of the Prospectus filed with the Securities Exchange Commission ("Preliminary Prospectuses") in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that unless waived by the Company in writing, the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(v) file documents required of the Company for issuance normal blue sky clearance in states reasonably specified in writing by the Investor prior to such Investor the effectiveness of the Registration Statement, provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(vi) bear all expenses (other than underwriting discounts and is listed on a national securities exchange or Nasdaqcommissions, if any) in connection with the procedures in paragraph (i) through (v) of another entity this Section 1 and the registration of the Shares pursuant to the Registration Statement, including without limitation (a) registration and filing fees with the "Registration Period"SEC, (b) fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of Company counsel in connection with blue sky qualifications of the Shares). In , (c) printing expenses, (d) fees and expenses incurred in connection with the event that Form S-3 is unavailable listing of the Shares, (e) fees and expenses of counsel and independent certified public accountants for the Company (including the expenses of any comfort letters), (f) the fees and expenses of any additional experts retained by the Company in connection with such registration, (g) fees and expenses in connection with any review of underwriting arrangements by the Company shall use such other form as is available for such a registration. For purposes National Association of this Section 1.1(a)Securities Dealers, Inc., including fees and expenses of any "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;qualified independent underwriter,"
Appears in 1 contract
Sources: Securities Purchase Agreement (Micro Investment LLC)
Registration Procedures and Expenses. 5.1 The Company hereby agrees that it shall:
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A)use its commercially reasonable efforts, subject to receipt of necessary information from the Trust Purchaser, to file a Resale Registration Statement (the “Resale Registration Statement”) with the SEC no later than the 60th calendar day following the Closing Date (the “Filing Date”) to register all of the Registrable Shares for resale on Form S-1 under the Securities Act, and to provide the EmployeesPurchaser with a copy of such draft Resale Registration Statement for review not less than five (5) business days before filing;
(b) use its commercially reasonable efforts, subject to receipt of necessary information from the Purchaser, to cause such Resale Registration Statement to be declared effective, and any other qualifications or compliances (including, without limitation, the execution of any required undertaking to file post-effective amendments, appropriate qualifications or exemptions under applicable blue sky or other state securities laws and appropriate compliance with applicable securities laws, requirements or regulations) no later than the earlier of (i) the 90th calendar day following the Closing Date (or if the SEC reviews such filing, the 120th calendar day following the Closing Date, provided, however, such time period shall be extended, upon written notification to the Purchaser, by the number of days the Company is subject to a force majeure event that occurs during this period) and (ii) the 5th Business Day after the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that the Resale Registration Statement will not be “reviewed” or will not be subject to further comments from the Staff (such date, the “Effectiveness Deadline”), such efforts to include, without limiting the generality of the foregoing, preparing and filing with the SEC any financial statements or other information that is required to be filed prior to the effectiveness of such Resale Registration Statement;
(c) prepare and file with the SEC such amendments and supplements to such Resale Registration Statements and the prospectus used in connection therewith as soon as practicable following may be necessary to keep such request a registration statement on Form S-3 (the "Resale Registration Statement"), which Registration Statement shall not contain Statements continuously effective and free from any untrue statement of material fact misstatement or omit omission to state a material fact therein until termination of such obligation as provided in Section 5.4 below, subject to the Company’s right to suspend pursuant to Section 5.3;
(d) furnish to the Purchaser such number of copies of prospectuses in conformity with the requirements of the Securities Act and such other documents as the Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Shares by the Purchaser;
(e) file such documents as may be required of the Company for normal securities law clearance for the resale of the Registrable Shares in such states of the United States as may be reasonably requested by the Purchaser and use its commercially reasonable efforts to maintain such blue sky qualifications during the period the Company is required to maintain effectiveness of the Resale Registration Statements; provided, however, that the Company shall not be stated required in connection with this Section (e) to qualify as a foreign corporation or execute a general consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) upon notification by the SEC that the Resale Registration Statement will not be reviewed or is not subject to further review by the SEC, the Company shall within three (3) business days following the date of such notification request acceleration of such Resale Registration Statement (with the requested effectiveness date to be not more than two (2) business days from the date of such acceleration request);
(g) upon notification by the SEC that the Resale Registration Statement has been declared effective by the SEC, the Company shall file the final prospectus under Rule 424 by 9:30 a.m. New York time on the Business Day following the date such Resale Registration Statement has been declared effective;
(h) advise the Purchaser promptly (provided that in no event shall such notice contain any material, nonpublic information):
(i) of the effectiveness of the Resale Registration Statement or any post-effective amendments thereto;
(ii) of any request by the SEC for amendments to the Resale Registration Statement or amendments to the prospectus or for additional information relating thereto;
(iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Resale Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Registrable Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes; and
(iv) of the existence of any fact and the happening of any event that makes any statement of a material fact made in the Resale Registration Statement, the prospectus and amendment or supplement thereto, or any document incorporated by reference therein, untrue, or necessary that requires the making of any additions to or changes in the Resale Registration Statement or the prospectus in order to make the statement statements therein, in the light of the circumstances in under which they were made, not misleading, provided such notice shall not disclose any material, non-public information concerning the Company to enable the resale Purchaser;
(i) cause all Registrable Shares to be listed on each securities exchange, if any, on which equity securities by the Company are then listed; and
(j) bear all expenses in connection with the procedures in paragraphs (a) through (i) of this Section 5.1 and the registration of the shares Registrable Shares on such Resale Registration Statement and the satisfaction of Company Common Stock subject the blue sky laws of such states (but excluding the fees of legal counsel for any Purchaser).
(k) If (i) the Resale Registration Statement is not filed with the SEC on or prior to the Transfer Filing Date (ii) the "Resale Registration Statement covering the Registrable Shares") Shares is not declared effective by the Trust from time SEC on or prior to time on the Nasdaq and use all reasonable efforts to cause Effectiveness Deadline or (iii) after the Resale Registration Statement has been declared effective by the SEC, (A) such Registration Statement ceases for any reason (including, without limitation, by reason of a stop order, or the Company’s failure to be declared effective as promptly as possible after filing and update the Registration Statement) to remain continuously effective until the earlier of as to sell all Registrable Shares for which it is required to be effective, (iB) the later Purchaser is not permitted to utilize the Prospectus therein to resell such Registrable Shares (other than during permitted suspension under Section 5.3), or (C) a permitted suspension of the third anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond under Section 5.3 exceeds the Grace Periodlength set forth therein (each of the foregoing events in clauses (i), (ii) such time as all Registrable Shares subject to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or and (iii) ), a “Registration Failure”), then, in addition to any other rights the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered Purchaser may have hereunder or under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registrationapplicable law, the Company will make a payment to the Purchaser, as liquidated damages and not as a penalty (the “Liquidated Damages”), in an amount equal to one percent (1.0%) of the aggregate amount invested by the Purchaser for the Registrable Shares then held by the Purchaser for the initial day of a Registration Failure and for each thirty (30) day period (or pro rata portion thereof with respect to a final period, if any) thereafter until the Registration Failure is cured. The Liquidated Damages shall use be paid monthly within ten (10) business days of the date of such other form Registration Failure and the end of each subsequent thirty (30) day period (or portion thereof with respect to a final period, if any) thereafter until the Registration Failure is cured. Such payments shall be made in cash to the Purchaser. Interest shall accrue at the rate of one percent (1.0%) per month on any such Liquidated Damages payments that shall not be paid by the applicable payment date until such amount is paid in full. Notwithstanding the foregoing, (I) no Liquidated Damages shall be payable with respect to any period after the expiration of the Effectiveness Period (as is available for defined below) (it being understood that this sentence shall not relieve the Company of any Liquidated Damages accruing prior to the expiration of the Effectiveness Period), and (II) in no event shall the aggregate amount of Liquidated Damages payable to the Purchaser exceed, in the aggregate, five percent (5.0%) of the aggregate purchase price paid by such a registration. For purposes of Purchaser pursuant to this Section 1.1(a5.1(k), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested within 15 business days after the Closing Date, prepare and file with the Commission a registration statement on Form S- 3 (and it qualifies under applicable SEC rulesthe "Registration Statement") relating to undertake an S-3 registration the sale of the Shares by the Trust with regard to Purchaser on the Voting Securities subject to Nasdaq National Market or the Transfer facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions;
(including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A)b) use its reasonable best efforts, subject to receipt of necessary information from the Trust and Purchaser, to cause the Employees, staff of the Commission to notify the Company of the staff's willingness to grant acceleration of the effective date of the Registration Statement within 60 days after the Registration Statement is filed by the Company;
(c) promptly notify the Purchaser upon the Registration Statement being declared effective by the Commission;
(d) provide to the Purchaser any information necessary to permit sale of the Shares under Rule 144 or Rule 144A of the Securities Act.
(e) prepare and file with the SEC as soon as practicable following Commission such request a registration statement on Form S-3 (amendments and supplements to the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to and the prospectus used in connection therewith as may be stated therein, or necessary to make keep the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier date on which the Shares may be resold in any three-month period by the Purchaser without registration and without any restrictions by reason of Rule 144(k) under the Securities Act or any other rule of similar effect;
(if) the later of the third anniversary of the Transfer, plus, in each case, a number of days equal promptly furnish to the number of daysPurchaser with respect to the Shares registered under the Registration Statement (and to each underwriter, if any, the Registration Statement is suspended or not effective beyond the Grace Period, (iiof such Shares) such time number of copies of prospectuses and such other documents as the Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all Registrable or any of the Shares by the Purchaser; provided, however, that the obligation of the Company to deliver copies of prospectuses to the Purchaser shall be subject to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under receipt by the Securities Act, or (iii) Company of reasonable assurances from the closing Purchaser that the Purchaser shall comply with the applicable provisions of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such prospectuses;
(g) file documents required of the Company for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event normal blue sky clearance in all states requiring blue sky clearance; provided, however, that Form S-3 is unavailable for such registration, the Company shall use such other form as not be required to qualify to do business or consent to service of process in any jurisdiction in which it is available for such a registration. For purposes not now so qualified or has not so consented; and
(h) bear all expenses in connection with the procedures in paragraphs (a) through (g) of this Section 1.1(a)10.1 and the registration of the Shares pursuant to the Registration Statement, "Grace Period" shall mean a suspension under Section 1.2(b) other than fees and 1.2(c) in excess expenses, if any, of sixty (60) days in counsel or other advisers to the aggregate in any twelve month period of time;Purchaser or underwriting discounts, brokerage fees and commissions incurred by the Purchaser, if any.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it So long as ▇▇▇ ▇▇▇▇ has ------------------------------------ not terminated her employment with the Purchaser pursuant to Section 4.04 of the Employment Agreement between the ▇▇▇ ▇▇▇▇ and the Purchaser dated as of the date hereof, Purchaser shall:
(a) if requested as soon as practicable after ___________________, 199___ but in no event later than ___________________, prepare and file with the Securities and Exchange Commission (and it qualifies the "Commission") a registration statement on Form S-3 which meets the requirements of Rule 415 promulgated under applicable SEC rulesthe Securities Act (a "Shelf Registration Statement") to undertake an S-3 registration covering the sale by the Trust with regard Stockholder from time to time of one-half of the Voting Securities subject to shares of the Transfer (includingPurchaser Common Stock received by each Stockholder in the Merger and as soon as practicable after December 9, 1995 a Shelf Registration Statement covering the Employee Shares should the Employees execute a joinder agreeing to be bound sale by the terms and provisions Stockholders from time to time of the Exhibit A)remaining shares of Purchaser Common Stock received by each Stockholder in the merger.
(b) use its best efforts, subject to receipt of necessary information from the Trust and Stockholder, to cause each of the Employees, Shelf Registration Statements to become effective;
(c) prepare and file with the SEC Commission such amendments and supplements to the Shelf Registration Statements and the prospectus used in connection therewith as soon as practicable following may be necessary to keep the Shelf Registration Statements effective until the earlier of the date on which the Purchaser Common Stock registered by such request a registration statement on Form S-3 (the "Registration Statement"), which Shelf Registration Statement shall not contain has been sold, or two years after the closing;
(d) during the period referred to in (c) above, prepare and promptly file with the Commission, and promptly notify the Stockholder of the filing of, such amendment or supplement to each such Shelf Registration Statement and the prospectus as may be necessary to correct any statements or omissions if, at any time when a prospectus relating to the Purchaser Common Stock is required to be delivered under the Securities Act, any event has occurred the result of which is that any such prospectus then in effect would include or incorporate an untrue statement of a material fact or omit to state a any material fact required to be stated therein, or necessary to make the statement therein, statements therein not misleading in light of the circumstances in which they were made;
(e) advise the Stockholder, not misleadingpromptly after it shall receive notice or obtain knowledge thereof, to enable the resale of the shares issuance of Company any stop order by the Commission suspending the effectiveness of any of such Shelf Registration Statements or the initiation or threatening of any proceeding for that purpose and promptly use its diligent best efforts to prevent the issuance of any stop order and to obtain its withdrawal if such stop order should be issued;
(f) furnish to the Stockholder with respect to the Purchaser Common Stock registered under any of the Shelf Registration Statements such number of copies of prospectuses and preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Stockholder may reasonably request (but in no event more than 100), in order to facilitate the public sale or other disposition of all or any of the registered Purchaser Common Stock by the Stockholder; provided, however, that the obligation of -------- ------- Purchaser to deliver copies of prospectuses or preliminary prospectuses to the Stockholder shall be subject to the Transfer receipt by Purchaser of reasonable assurances from the Stockholder that the Stockholder will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such prospectuses or preliminary prospectuses;
(the "Registrable Shares"g) file documents required of Purchaser for normal blue sky clearance in states reasonably specified in writing by the Trust from time Stockholder, provided, however, that Purchaser shall not be required to time on qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented; and
(h) bear all expenses in connection with the Nasdaq procedures in paragraphs (a) through (g) of this Section 11.1 and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) the later registration of the third anniversary Purchaser Common Stock pursuant to each of the TransferShelf Registration Statements, plus, in each case, a number of days equal to the number of daysother than fees and expenses, if any, the Registration Statement is suspended of counsel or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject other advisers to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;Stockholder.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Sylvan Learning Systems Inc)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, prepare and file with the SEC Securities and Exchange Commission (the “SEC”), as soon as reasonably practicable following after the date of the Company’s initial issuance of Retirement Shares to the Retirement Trust pursuant to the Retirement Contribution Agreement, but in no event more than 60 days after such request date, a shelf registration statement on Form S-3 covering the Retirement Shares (such registration statement and any successor registration statement filed under the Securities Act of 1933, as amended (the "“Securities Act”), shall be hereinafter referred to as the “Registration Statement"”), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject Retirement Committee, with respect to the Transfer (Retirement Trust, to direct the "Registrable Shares") by Trustee to sell the Trust Retirement Shares from time to time on in the Nasdaq manner contemplated by the plan of distribution set forth in any prospectus that is part of the Registration Statement, as amended by any prospectus supplement or post-effective amendment thereto, and use all its reasonable commercial efforts to cause such Registration Statement to be declared effective as promptly as reasonably possible after filing and to remain continuously effective until the earlier earliest of (i) the later of date on which all Retirement Shares have been sold, and (ii) the third fifth anniversary of the TransferContribution Agreement (the “Registration Period”); provided, plushowever, in each case, a number that it shall not be required to file such Registration Statement or cause such Registration Statement to be declared effective during the pendency of days equal any suspension period pursuant to Sections 1.2(c) or (d) below;
(b) prepare and file with the number of days, if any, SEC such amendments (including post-effective amendments) and supplements to the Registration Statement is suspended or not effective beyond and the Grace Period, (ii) such time as all Registrable Shares subject to prospectus filed with the Transfer may immediately be sold during any 90 day period SEC pursuant to Rule 144 424(b) under the Securities Act, or if no such filing is required, as included in the Registration Statement (iii) the closing of an acquisition “Prospectus”), as may be necessary to keep the Registration Statement effective at all times until the end of the Registrable Registration Period; provided, however, that it shall not be required to file any such amendment or prospectus supplement during the pendency of any suspension period pursuant to Sections 1.2(c) or (d) below;
(c) with respect to the Retirement Trust, furnish the Retirement Committee and the Trustee with such reasonable number of copies of the Prospectus in conformity with the requirements of the Securities Act, and such other documents as the Retirement Committee may direct the Trustee to request, in exchange order to facilitate the public sale or other disposition of all or any of the Retirement Shares held by the Retirement Trust by the Trustee, as directed by the Retirement Committee;
(d) use its reasonable commercial efforts to file documents required of the Company for publicly traded stock normal blue sky clearance in such states as the Retirement Committee shall reasonably designate in writing; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented; and
(i.e.e) bear all expenses in connection with the actions contemplated by paragraphs (a) through (d) of this Section 1.1 and the registration of the Retirement Shares pursuant to the Registration Statement. With respect to the Retirement Trust, stock that has been registered the Retirement Committee shall provide such reasonable assistance to the Company and furnish, or cause to be furnished, to the Company in writing such information regarding the Retirement Shares to be sold and the intended method or methods of disposition of the Retirement Shares, as shall be required to effect the registration of the Retirement Shares and as may be required from time to time under the Securities Act for issuance and the rules and regulations thereunder. As directed by the Retirement Committee, with respect to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registrationRetirement Trust, the Trustee will provide the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) with specific information from the Trustee’s ordinary books and 1.2(c) in excess of sixty (60) days in records about the aggregate in any twelve month period of time;Retirement Shares or the Retirement Trust.
Appears in 1 contract
Sources: Registration Rights Agreement (Hecla Mining Co/De/)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, The Company shall prepare and file with the SEC SEC, as soon promptly as reasonably practicable following such request Closing, but in no event later than 30 days following the date hereof (the “Initial Filing Date”), a registration statement on Form S-3 (the "Registration Statement"or any successor to Form S-3), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable covering the resale of the shares of Company Common Stock subject to the Transfer Registrable Securities (as defined below) (the "Registrable Shares"“S-3 Registration Statement”) and as soon as reasonably practicable thereafter but in no event later than 90 days following the date hereof (120 days in the event of a full review of the S-3 Registration Statement by the Trust from time SEC), to time on effect such registration and any related qualification or compliance with respect to all Registrable Securities held by the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until Purchasers. For purposes of this Agreement, the earlier of term “Registrable Securities” shall mean (i) the later of the third anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace Period, Warrant Shares; and (ii) such time any Common Stock of the Company issued as all Registrable Shares subject to (or issuable upon the Transfer may immediately be sold during conversion or exercise of any 90 day period pursuant to Rule 144 under the Securities Actwarrant, right or other security which is issued as) a dividend or other distribution with respect to, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e.or in replacement of, stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period")any Warrant Shares. In the event that Form S-3 (or any successor form) is or becomes unavailable for such registrationto register the resale of the Registrable Securities at any time prior to the expiration of the Purchasers’ registration rights pursuant to Section 6.6, the Company shall use such other form prepare and file with the SEC, as is available for such promptly as reasonably practicable following the Closing but in no event later than the Initial Filing Date, a registration. For purposes of this Section 1.1(aregistration statement on Form S-1 (or any successor to Form S-1), "Grace Period" shall mean a suspension under Section 1.2(bcovering the resale of the Registrable Securities (the “S-1 Registration Statement” and collectively the S-3 Registration Statement, the “Registration Statement”) and 1.2(c) as soon as reasonably practicable thereafter but in excess of sixty no event later than 90 days following the date hereof (60) 120 days in the aggregate in event of a full review of the S-1 Registration Statement by the SEC), to effect such registration and any twelve month period related qualification or compliance with respect to all Registrable Securities held by the Purchasers. If the Company is not eligible to use Form S-3 at Initial Filing Date, and the Company subsequently becomes eligible to use Form S-3 during the Effectiveness Period (as defined below), the Company shall file, as promptly as reasonably practicable, a new S-3 Registration Statement covering the resale of time;the Registrable Securities and replace the S-1 Registration Statement with the new S-3 Registration Statement upon the effectiveness of the new S-3 Registration Statement.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by Following the Trust with regard to the Voting Securities subject to the Transfer (includingClosing, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, Company shall prepare and file with the SEC as soon as practicable following such request a registration statement on Form S-3 (the "Registration Statement"), which Registration Statement shall not contain or any untrue statement of material fact or omit successor to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable Form S-3) covering the resale of the shares Registrable Securities (as defined below) (the “S-3 Registration Statement”) no later than 30 days after the Closing. For purposes of Company this Agreement, the term “Registrable Securities” shall mean (i) the Warrants; (ii) the Shares and Warrant Shares; and (iii) any Common Stock subject of the Company issued as (or issuable upon the conversion or exercise of any warrant, right or other security which is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, any Shares or Warrant Shares. If the S-3 Registration Statement has not been filed with the SEC on or before the date that is 30 days after the Closing (the “Required Filing Date”), the Company shall, on the business day immediately following the Required Filing Date and each 30th day thereafter, make a payment to the Transfer Purchasers as partial liquidated damages for such delay (together, the "Registrable Shares"“Late Registration Payments”) equal to 1% of the Purchase Price paid for the Securities then owned by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective Purchasers until the earlier of (i) the later of date the third anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the S-3 Registration Statement is suspended filed with the SEC or not effective beyond (ii) the Grace Perioddate on which all Common Shares may be sold pursuant to Rule 144. Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid to the Purchasers by wire transfer or check within five business days after the earlier of (i) the end of each 30 day period following the Required Filing Date, (ii) such time as all Registrable Shares subject to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under date of filing of the Securities Act, S-3 Registration Statement or (iii) the closing date on which all Common Shares may be sold pursuant to Rule 144. If the Company fails to pay any liquidated damages pursuant to this section in full within seven days after the date payable, the Company will pay interest thereon at a rate of an acquisition of 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Registrable Securities Purchasers, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in exchange for publicly traded stock (i.e.full. “Business day” means any day except Saturday, stock Sunday and any day that has been registered under is a federal legal holiday in the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period")United States. In the event that Form S-3 (or any successor form) is or becomes unavailable for such registrationto register the resale of the Registrable Securities at any time prior to the expiration of the Purchasers’ registration rights pursuant to Section 6.4, the Company shall use such other form as is available for such prepare and file with the SEC a registration. For purposes of this Section 1.1(aregistration statement on Form S-1 (or any successor to Form S-1), "Grace Period" shall mean a suspension under Section 1.2(bcovering the resale of the Registrable Securities (the “S-1 Registration Statement” and collectively the S-3 Registration Statement, the “Registration Statement”) and 1.2(c) in excess of sixty (60) days in cause the aggregate in any twelve month period of time;SEC to declare the S-1 Registration Statement effective as promptly as reasonably practicable.
Appears in 1 contract
Sources: Common Stock and Warrant Purchase Agreement (Research Frontiers Inc)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested within fourteen (14) days immediately following each Closing, such actual date being referred to as the “Registration Date,” prepare and it qualifies file with the SEC a registration statement on Form S-3 in order to register with the SEC under applicable SEC rulesthe Securities Act a sale by CELL GENESYS on a delayed or continuous basis pursuant to Rule 415 under the Securities Act any or all of the Registrable Shares then issued at such Closing through the automated quotation system of the Nasdaq National Market System or the facilities of any national securities exchange on which the Company’s Common Stock is then traded, or in privately-negotiated transactions (a “Registration Statement”) to undertake an S-3 registration by the Trust with regard (notwithstanding anything to the Voting Securities subject to contrary expressed or implied herein, if a registration statement on Form S-3, or any substitute form, is not then available for registration of the Transfer (includingRegistrable Shares, the Employee Company shall be obligated instead to prepare and file with the SEC a registration statement on Form S-1 in order to register the Registrable Shares should under the Employees execute Securities Act and such registration statement will be a joinder agreeing to be bound by “Registration Statement” for the terms and provisions purposes of the Exhibit Athis Agreement), ;
(b) subject to receipt of necessary information from the Trust and the EmployeesCELL GENESYS, prepare and file with the SEC as soon as practicable following such request a registration statement on Form S-3 (the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable its commercially reasonably efforts to cause such Registration Statement to be declared become effective as promptly soon as possible after filing the Registration Date, and take all other reasonable actions necessary under any federal law or regulation to remain continuously effective until the earlier permit all Registrable Shares to be sold or otherwise disposed of thereunder;
(ic) the later of the third anniversary of the Transferpromptly notify CELL GENESYS, plus, in each case, at any time when a number of days equal prospectus relating to the number of days, if any, the such Registration Statement is suspended or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject required to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in or relating to such Registration Statement contains an Untrue Statement;
(iiid) promptly prepare and file with the closing SEC, and deliver to CELL GENESYS, such amendments and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective until termination of an acquisition such obligation as provided in Section 8.7 below;
(e) furnish to CELL GENESYS such number of copies of prospectuses in conformity with the requirements of the Securities Act, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities Shares by CELL GENESYS;
(f) file such documents as may be required of the Company for normal state securities law clearance for the resale of the Registrable Shares in exchange for publicly traded stock (i.e.which states of the United States as may be reasonably requested by CELL GENESYS provided, stock however, that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form not be required in connection with this paragraph (f) to qualify as is available for such a registration. For purposes foreign corporation or execute a general consent to service of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate process in any twelve month period jurisdiction;
(g) no later than the Registration Date, use its best efforts to cause all Registrable Shares to be listed on each securities exchange, if any, on which equity securities by the Company are then listed; and
(h) bear all expenses in connection with the procedures in Section 8.2, other than (i) fees and expenses, if any, of time;counsel or other advisers to CELL GENESYS, and (ii) any expenses relating to the sale of the Registrable Shares by CELL GENESYS, including broker’s commission, discounts or fees and transfer taxes.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it So long as the ------------------------------------ Stockholder has not initiated the termination of his employment with the Purchaser pursuant to Section 4.01 of the Employment Agreement between the Stockholder and the Purchaser dated as of the date hereof, Purchaser shall:
(a) if requested as soon as practicable after the closing date but in no event later than ninety (90) days after the closing date, prepare and it qualifies file with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 which meets the requirements of Rule 415 promulgated under applicable SEC rulesthe Securities Act (a "Shelf Registration Statement") to undertake an S-3 registration covering the sale by the Trust with regard Stockholder from time to time of one half of the Voting Securities subject to shares of the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound Purchaser Common Stock received by the terms Stockholder in the Merger, and provisions as soon as practicable after the first anniversary of the Exhibit A)closing date, but in no event later than ninety (90) days after the first anniversary of the closing date, a Shelf Registration Statement covering the sale by the Stockholder from time to time of the remaining shares of Purchaser Common Stock.
(b) use its best efforts, subject to receipt of necessary information from the Trust and Stockholder, to cause each of the Employees, Shelf Registration Statements to become effective;
(c) prepare and file with the SEC Commission such amendments and supplements to the Shelf Registration Statements and the prospectus used in connection therewith as soon as practicable following may be necessary to keep the Shelf Registration Statements effective until the earlier of the date on which the Purchaser Common Stock registered by such request a registration statement on Form S-3 (the "Registration Statement"), which Shelf Registration Statement shall not contain has been sold, or one year from the date of the initial filing thereof;
(d) during the period referred to in (c) above, prepare and promptly file with the Commission, and promptly notify the Stockholder of the filing of, such amendment or supplement to each such Shelf Registration Statement and the prospectus as may be necessary to correct any statements or omissions if, at any time when a prospectus relating to the Purchaser Common Stock is required to be delivered under the Securities Act, any event has occurred the result of which is that any such prospectus then in effect would include or incorporate an untrue statement of a material fact or omit to state a any material fact required to be stated therein, or necessary to make the statement therein, statements therein not misleading in light of the circumstances in which they were made;
(e) advise the Stockholder, not misleadingpromptly after it shall receive notice or obtain knowledge thereof, to enable the resale of the shares issuance of Company any stop order by the Commission suspending the effectiveness of any of such Shelf Registration Statements or the initiation or threatening of any proceeding for that purpose and promptly use its diligent best efforts to prevent the issuance of any stop order and to obtain its withdrawal if such stop order should be issued;
(f) furnish to the Stockholder with respect to the Purchaser Common Stock registered under any of the Shelf Registration Statements such number of copies of prospectuses and preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Stockholder may reasonably request (but in no event more than 100), in order to facilitate the public sale or other disposition of all or any of the registered Purchaser Common Stock by the Stockholder; provided, however, that the obligation of -------- ------- Purchaser to deliver copies of prospectuses or preliminary prospectuses to the Stockholder shall be subject to the Transfer receipt by Purchaser of reasonable assurances from the Stockholder that the Stockholder will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such prospectuses or preliminary prospectuses;
(the "Registrable Shares"g) file documents required of Purchaser for normal blue sky clearance in states reasonably specified in writing by the Trust from time Stockholder, provided, however, that Purchaser shall not be required to time on qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented; and
(h) bear all expenses in connection with the Nasdaq procedures in paragraphs (a) through (g) of this Section 11.1 and use all reasonable efforts to cause such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of (i) the later registration of the third anniversary Purchaser Common Stock pursuant to each of the TransferShelf Registration Statements, plus, in each case, a number of days equal to the number of daysother than fees and expenses, if any, the Registration Statement is suspended of counsel or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject other advisers to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;Stockholder.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shall, in accordance with the terms of the Stock Purchase Agreements:
(a1) if requested as soon as practicable, give written notice to the holders of any Restricted Securities (as such term is defined in the Stock Purchase Agreements) of the Company of the Company's intention to register the Shares pursuant to this Section 8;
(2) as soon as practicable (and it qualifies under applicable SEC rulesin any event within five (5) to undertake an S-3 registration by business days after the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit Adate hereof), subject to receipt of necessary information from the Trust and the Employees, prepare and file with the SEC as soon as practicable following such request Commission a registration statement on Form S-3 (the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable ) covering the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") Shares by the Trust Purchasers from time to time on the Nasdaq and National Market or in privately negotiated transactions;
(3) use all reasonable efforts its best efforts, subject to receipt of necessary information from the Purchasers, to cause such the Registration Statement to be declared become effective as promptly soon as possible practicable but in no event later than sixty days after filing the date thereof;
(4) prepare and file with the Commission such amendments and supplements to remain continuously the Registration Statement and the prospectus used in connection therewith as may be necessary to keep the Registration Statement effective until for a period not exceeding, with respect to each Purchaser's Shares purchased hereunder, the earlier of (i) the later of the third second anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace PeriodClosing Date, (ii) such time as all Registrable after the first anniversary of the Closing Date when such Purchaser's Shares subject to purchased hereunder and then owned by such Purchaser represent no more than one percent of the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities ActCompany's outstanding common stock, or (iii) such time as all Shares purchased by such Purchaser pursuant to this Agreement have been sold pursuant to the closing of an acquisition Registration Statement.
(5) furnish to each of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been Purchasers with respect to the Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares) such number of copies of prospectuses and preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Purchasers, provided, however, that the obligation of the Company to deliver copies of prospectuses or preliminary prospectuses to the Purchasers shall be subject to the receipt by the Company and Seller of reasonable assurances from the Purchaser that the Purchaser will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such prospectuses or preliminary prospectuses;
(6) file documents required of the Company for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (normal blue sky clearance in all states specified in writing by the "Registration Period"). In the event Purchaser, provided, however, that Form S-3 is unavailable for such registration, the Company shall use such other form as not be required to qualify to do business or consent to service of process in any jurisdiction in which it is available for such a registration. For purposes not now so qualified or has not so consented; and
(7) bear all expenses in connection with the procedures in paragraphs (1) through (6) of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b8(a) and 1.2(c) in excess the registration of sixty (60) days in the aggregate in Shares pursuant to the Registration Statement, including the reasonable fees and expenses, if any, of counsel or other advisers to the Purchasers. The Company understands that each of the Purchasers disclaims being an underwriter, but a Purchaser being deemed an underwriter shall not relieve the Company of any twelve month period of time;obligations it has hereunder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Liberty Technologies Inc)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, prepare and file with the SEC Securities and Exchange Commission (the “SEC”), as soon as reasonably practicable following such request after the date of the Contribution, but in no event more than 30 days after the Contribution, a shelf registration statement on Form S-3 covering the Registrable Shares, except to the extent it has an existing shelf registration statement covering the Common Stock that may be used for the purposes contemplated herein (such new or existing registration statement and any successor registration statement filed under the Securities Act of 1933, as amended (the "“Securities Act”), hereinafter referred to as the “Registration Statement"”), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of Manager to sell the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust Shares from time to time on in the Nasdaq manner contemplated by the plan of distribution set forth in the Registration Statement, as amended by any prospectus supplement or post-effective amendment thereto, and use all its reasonable commercial efforts to cause such Registration Statement Statement, if not effective on the date of the Contribution, to be declared effective as promptly as reasonably possible after filing and to remain continuously effective until the earlier of (i) the later of date on which all Registrable Shares are sold and (ii) the third anniversary of date which is 90 days after the Transfer, plus, in each case, a number of days equal to date on which the number of daysRegistrable Shares held by the Trust is less than one percent of the shares of Common Stock then outstanding (the “Registration Period”); provided, if anyhowever, that the Company shall not be required to file such Registration Statement or cause such Registration Statement to be declared effective during the pendency of any suspension period pursuant to Sections 1.2(c) or (d) below;
(b) prepare and file with the SEC such amendments (including post-effective amendments) to the Registration Statement is suspended or not effective beyond the Grace Period, (ii) such time as all Registrable Shares subject and supplements to the Transfer may immediately be sold during prospectus or any 90 day period prospectus supplements filed with the SEC pursuant to Rule 144 424(b) under the Securities Act, or if no such filing is required, as included in the Registration Statement (iiithe “Prospectus”), as may be necessary to keep the Registration Statement effective at all times until the end of the Registration Period; provided, however, that it shall not be required to file any such amendment or prospectus supplement during the pendency of any suspension period pursuant to Sections 1.2(c) or (d) below;
(c) furnish the closing Manager with such reasonable number of an acquisition copies of the Prospectus in conformity with the requirements of the Securities Act, and such other documents as the Manager may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities Shares by the Manager;
(d) use its reasonable commercial efforts to file documents, if any, required of the Company for normal blue sky clearance relating to the Registrable Shares in exchange for publicly traded stock such states as the Manager shall reasonably designate in writing; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(i.e.e) use its reasonable commercial efforts to cause the Registrable Shares to be listed on the New York Stock Exchange (the “NYSE”) as soon as reasonably practicable after the date of the Contribution; and
(f) bear all expenses in connection with the actions contemplated by paragraphs (a) through (e) of this Section 1.1 and the registration of the Registrable Shares pursuant to the Registration Statement, stock including reasonable fees and expenses of legal counsel to the Manager incurred in connection with the registration and sale of the Registrable Shares, but excluding underwriting discounts, brokerage fees and commissions incurred by the Manager, the Trust or the Plan, if any. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 1.1 that has been registered the Manager shall provide such reasonable assistance to the Company and furnish, or cause to be furnished, to the Company in writing such information regarding the Manager, the Registrable Shares to be sold, and the intended method or methods of disposition of the Registrable Shares, as shall be required to effect the registration of the Registrable Shares and as may be required from time to time under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) rules and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;regulations thereunder.
Appears in 1 contract
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the EmployeesInvestors, prepare and file with the SEC SEC, as soon as practicable following such request practicable, but in no event later than ten (10) days after the Closing Date, a registration statement on Form S-3 (the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, ) to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") Shares by the Trust Investors from time to time on through the automated quotation system of the Nasdaq and Stock Market or in privately-negotiated transactions;
(b) use all reasonable its best efforts to cause the Registration Statement to become effective as soon as practicable, but (i) if the staff of the Securities and Exchange Commission determines that it will not review such Registration Statement prior to declaring it effective, then in no event later than thirty (30) days after the Registration Statement is filed by the Company, or (ii) if such Registration Statement is reviewed by the staff of the Securities and Exchange Commission, then in no event later than ninety (90) days after the Registration Statement is filed by the Company.
(c) use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the Prospectus used in connection therewith as may be declared necessary to keep the Registration Statement current and effective as promptly as possible after filing and for a period not exceeding, with respect to remain continuously effective until each Investor's Shares purchased hereunder, the earlier of (i) the later of the third second anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace PeriodClosing Date, (ii) the date on which the Investor may sell all Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of the Securities Act or (iii) such time as all Registrable Shares purchased by such Investor in this Offering have been sold.
(d) furnish to the Placement Agent and to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statement, Prospectuses and Preliminary Prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares by the Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to the Investor shall be subject to the Transfer receipt by the Company of reasonable assurances from the Investor that the Investor will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may immediately be sold during applicable in connection with any 90 day period use of such Prospectuses or Preliminary Prospectuses;
(e) file documents required of the Company for blue sky clearance in states specified in writing by the Investor, provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of this Section 7.1 and the registration of the Shares pursuant to the Registration Statement;
(g) advise the Investors, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation of any proceeding for that purpose; and it will promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued; and
(h) With a view to making available to the Investor the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Shares to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) such date as all of the Investor's Shares may be resold pursuant to Rule 144 under the Securities Act, 144(k) or any other rule of similar effect or (iiiB) the closing of an acquisition such date as all of the Registrable Securities Investor's Shares shall have been resold; (ii) file with the SEC in exchange for publicly traded stock (i.e., stock that has been registered a timely manner all reports and other documents required of the Company under the Securities Act for issuance and under the Exchange Act; and (iii) furnish to the Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Investor and is listed on a national securities exchange of any rule or Nasdaq) regulation of another entity (the "Registration Period")SEC that permits the selling of any such Shares without registration. In The Investor shall furnish to the event that Form S-3 is unavailable for Company such registrationinformation regarding itself, the Shares to be sold by Investor, and the intended method of disposition of such securities as shall be reasonably required to effect the registration of the Shares. The Company understands that the Investor disclaims being an underwriter, but the Investor being deemed an underwriter by the SEC shall use not relieve the Company of any obligations it has hereunder, provided, however, that if the Company receives notification from the SEC that the Investor is deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended to the earlier of (i) the 90th day after such other form as is available for such a registration. For purposes SEC notification, or (ii) 120 days after the initial filing of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;Registration Statement with the SEC.
Appears in 1 contract
Sources: Stock Purchase Agreement (Endocardial Solutions Inc)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested (and it qualifies under applicable SEC rules) to undertake an S-3 registration as soon as reasonably practicable following the Closing Date, but in no event by the Trust later of thirty (30) days following the Closing Date and ten (10) calendar days after the Company files the 2009 Form 10-K with regard to the Voting Securities subject to SEC (the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A“Filing Date”), subject to receipt of necessary information from the Trust and the Employees, prepare and file with the SEC as soon as practicable following such request a registration statement Registration Statement on Form S-3 (or any successor form to Form S-3) (the "“S-3 Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit ”) relating to state a material fact required to be stated therein, or necessary to make the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of all of the Conversion Shares and Warrant Shares by the Purchasers, together with any shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust capital stock issued or issuable, from time to time, upon any reclassification, share combination, share subdivision, stock split, share dividend or similar transaction or event or otherwise as a distribution on, in exchange for or with respect to any of the foregoing, in each case held at the relevant time by a Purchaser (the “Registrable Securities”); provided, however, that in the event that the SEC specifically prohibits the S-3 Registration Statement from including all Registrable Securities of each Purchaser (“Commission Guidance”) (provided, that the Company shall advocate with the SEC for the registration of all or the maximum number of the Registrable Securities permitted by Commission Guidance), then the Company will file such additional Registration Statements (the “Subsequent Registration Statements,” together with the Initial Registration Statement, the “Registration Statements”) at the earliest practicable date on which the Nasdaq and use all reasonable efforts Company is permitted by Commission Guidance to cause file such additional Registration Statements related to the Registrable Securities. If any Commission Guidance specifically limits the number of Registrable Securities to be registered on a particular Registration Statement, the number of Registrable Securities to be registered on such Registration Statement to will first be declared effective as promptly as possible after filing and to remain continuously effective until reduced by the earlier of (i) Registrable Securities represented by Warrant Shares on a pro rata basis based on the later of the third anniversary of the Transfer, plus, in each case, a total number of days equal to unregistered Warrant Shares held by such Purchasers on a fully diluted basis, and second by the Registrable Securities represented by Conversion Shares on a pro rata basis based on the total number of daysunregistered Preferred Shares held by such Purchasers. If the context so requires, if anyConversion Shares and Warrant Shares of any Purchaser will not be considered Registrable Securities for the purposes of a certain determination of Registrable Securities hereunder if, the Registration Statement is suspended or not effective beyond the Grace Periodat that time of such determination, (ii) such time as all Registrable Shares subject to the Transfer may immediately they can be sold during any 90 day period pursuant to Rule 144 without volume or manner of sales limitations or have been sold under the Securities Act, or (iii) the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance to such Investor and is listed on a national securities exchange or Nasdaq) of another entity (the "effective Registration Period")Statement. In the event that Form S-3 is (or any successor form to Form S-3) becomes unavailable for such registration, the Company shall use such other form as is available for such a registration. For purposes to maintain registration of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;the
Appears in 1 contract
Registration Procedures and Expenses. The If and whenever the Company hereby agrees that it shall------------------------------------ is required by the provisions of Section 4 or 5 hereof to use its best efforts to effect the registration of any of the Restricted Stock under the Securities Act, the Company will, as expeditiously as possible:
(a) if requested prepare (and it qualifies under applicable SEC rulesafford counsel for the selling holders reasonable opportunity to review and comment thereon) to undertake an S-3 registration by the Trust with regard to the Voting Securities subject to the Transfer (including, the Employee Shares should the Employees execute a joinder agreeing to be bound by the terms and provisions of the Exhibit A), subject to receipt of necessary information from the Trust and the Employees, prepare and file with the SEC as soon as practicable following such request Commission a registration statement (which, in the case of an underwritten public offering pursuant to Section 4 hereof, shall be on Form S-3 ▇-▇, ▇-▇ or another form of general applicability satisfactory to the managing underwriter selected as therein provided) with respect to such securities and use its best efforts to cause such registration statement to become and remain effective for the period of the distribution contemplated thereby (determined as hereinafter provided);
(b) prepare (and afford counsel for the "Registration Statement"selling holders reasonable opportunity to review and comment thereon) and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith and any documents incorporated by reference therein and file such other documents as may be necessary to keep such registration statement effective for the period specified in paragraph (a) above and to comply with the provisions of the Securities Act with respect to the disposition of all Restricted Stock covered by such registration statement in accordance with the sellers' intended method of disposition set forth in such registration statement for such period;
(c) furnish to each seller and to each underwriter such number of copies of the registration statement and the prospectus included therein (including each preliminary prospectus), and all amendments, supplements, and exhibits thereto, and such other documents as such persons may reasonably request in order to facilitate the public sale or other disposition of the Restricted Stock covered by such registration statement (and the Company hereby consents to the use of any such prospectus, together with such supplements and amendments, by the sellers and underwriters, if any, in connection with the offer and sale covered thereby);
(d) use its best efforts to register or qualify the Restricted Stock covered by such registration statement under the securities or blue sky laws of such jurisdictions as the sellers of Restricted Stock or, in the case of an underwritten public offering, the managing underwriter, shall reasonably request (provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of process in any jurisdiction);
(e) immediately notify each seller under such registration statement and each underwriter, (i) when such registration statement or any post- effective amendment or supplement thereto becomes effective; (ii) of the issuance by the SEC or any state securities authority of any stop order, injunction or other order or requirement suspending the effectiveness of such registration statement (and the Company shall use best efforts to prevent the initiation of proceedings for, prevent the entry of and/or remove such order or requirement); or (iii) of the happening of any event as a result of which Registration Statement shall not contain such registration statement, as then in effect, the prospectus contained therein or any document incorporated by reference therein includes an untrue statement of a material fact or omit omits to state a any material fact required to be stated therein, therein or necessary to make the statement therein, statements therein not misleading in the light of the circumstances in which they were madethen existing;
(f) use its best efforts to furnish, not misleadingat the request of any seller, to enable on the resale of the shares of Company Common date that Restricted Stock subject is delivered to the Transfer (the "Registrable Shares") by the Trust from time underwriters for sale pursuant to time such registration, if such securities are being sold through underwriters, or on the Nasdaq and use all reasonable efforts to cause date that the registration statement becomes effective, if such Registration Statement to be declared effective as promptly as possible after filing and to remain continuously effective until the earlier of securities are not being sold through underwriters: (i) an opinion dated such date of counsel representing the later Company for the purposes of the third anniversary of the Transfersuch registration, plus, in each case, a number of days equal addressed to the number of daysunderwriters, if any, and to such seller, stating that such registration statement has become effective under the Registration Statement is suspended or not effective beyond the Grace Period, Securities Act and that (iiA) such time as all Registrable Shares subject to the Transfer may immediately be sold during any 90 day period pursuant to Rule 144 best knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, or (iiiB) the closing registration statement, the related prospectus, and each amendment or supplement thereof, comply as to form in all material respects with the requirements of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been registered under the Securities Act for issuance and the applicable rules and regulations of the Commission thereunder (except that such counsel need express no opinion as to financial statements, the notes thereto, and the financial schedules and other financial and statistical data contained therein) and (C) to such Investor other effects as may reasonably be requested by counsel for the underwriters or by such seller or its counsel, and (ii) a letter dated such date from the independent public accountants retained by the Company, addressed to the underwriters, if any, and to such sellers stating that they are independent public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements of the Company included in the registration statement or the prospectus, or any amendment or supplement thereof, comply as to form in all material respects with the applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (including information as to the period ending no more than five business days prior to the date of such letter) with respect to the registration in respect of which such letter is being given as such underwriters or sellers may reasonably request;
(g) take such actions as may be necessary or appropriate to obtain a CUSIP number (if none exists) for the Common Stock, and make all filings and secure all approvals required pursuant to the regulations of the National Association of Securities Dealers, Inc. in connection with such registration;
(h) take such actions as may be necessary or appropriate to cause the Restricted Stock so to be registered to be listed on a the principal securities exchange (or on the NASDAQ National Market System, as the case may be) on which the Company's Common Stock is then traded (or, in the case of an initial public offering, on such national securities exchange (or Nasdaqon the NASDAQ National Market System) of another entity (the "Registration Period"). In the event that Form S-3 is unavailable for such registration, as the Company shall elect);
(i) use such other form its best efforts to comply with all applicable rules and regulations of the SEC, and make available to any holder of Restricted Stock, as is soon as reasonably practicable (but not more than 15 months) after the effective date of the registration statement, an earnings statement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations promulgated thereunder; and
(j) make available for inspection by each seller, any underwriter participating in any distribution pursuant to such a registrationregistration statement, and any attorney, accountant or other agent retained by such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement and permit such seller, attorney, accountant or agent to participate in the preparation of such registration statement. For purposes of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(bparagraphs (a) and 1.2(c(b) above and of Section 4(c) hereof, the period of distribution of Restricted Stock in excess a firm commitment underwritten public offering shall be deemed to extend until each underwriter has completed the distribution of sixty (60) days all securities purchased by it, and the period of distribution of Restricted Stock in any other registration shall be deemed to extend until the earlier of the sale of all Restricted Stock covered thereby or six months after the effective date thereof. In connection with each registration hereunder, the selling holders of Restricted Stock will furnish to the Company in writing such information with respect to themselves and the proposed distribution by them as shall be reasonably necessary in order to assure compliance with federal and applicable state securities laws. In connection with each registration pursuant to Sections 4 and 5 hereof covering an underwritten public offering, the Company agrees to enter into a written agreement with the managing underwriter selected in the aggregate manner herein provided in such form and containing such provisions as are customary in the securities business for such an arrangement between major underwriters and companies of the Company's size and investment stature; provided, however, that -------- ------- such agreement shall not contain any twelve month period such provision applicable to the Company which is inconsistent with the provisions hereof and provided, further, however, -------- ------- ------- that the time and place of time;the closing under said agreement shall be as mutually agreed upon among the Company, such managing underwriter and the selling holders of Restricted Stock.
Appears in 1 contract
Sources: Registration Rights Agreement (Centennial Cellular Operating Co LLC)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) if requested subject to receipt of necessary information from the Investors, prepare and file with the SEC, within thirty days after the Closing Date (and it qualifies under applicable SEC rulesthe "Filing Date"), a registration statement on Form S-3 (or other successor or appropriate form (the "Registration Statement") to undertake an S-3 registration enable the resale of the Shares by the Trust with regard Investors from time to time through the Voting Securities subject automated quotation system of the Nasdaq National Market (or such other exchange or trading market on which the Shares are publicly traded, if applicable) or in privately-negotiated transactions; PROVIDED THAT the Filing Date shall be extended for up to an additional 15 days in the Transfer (including, event that the Employee Shares should the Employees execute a joinder agreeing to Company has not received all information as shall be bound reasonably requested by the terms Company in writing for use in the Registration Statement by the Filing Date; PROVIDED FURTHER that the Filing Date shall be extended by at least five business days from the date that the Company has received all such information that the Company has requested; and provisions of PROVIDED FURTHER that the Exhibit A)Company has requested such information within 10 days from the Closing Date;
(b) use its best efforts, subject to receipt of necessary information from the Trust and Investors, to cause the Employees, Registration Statement to become effective within 90 days after the Registration Statement is filed by the Company;
(c) prepare and file promptly with the SEC as soon as practicable following such request a registration statement on Form S-3 (amendments and supplements to the "Registration Statement"), which Registration Statement shall not contain any untrue statement of material fact or omit to state and the Prospectus used in connection therewith (a material fact required to "Prospectus") as may be stated therein, or necessary to make keep the statement therein, in light of the circumstances in which they were made, not misleading, to enable the resale of the shares of Company Common Stock subject to the Transfer (the "Registrable Shares") by the Trust from time to time on the Nasdaq and use all reasonable efforts to cause such Registration Statement current and effective for a period not exceeding, with respect to be declared effective as promptly as possible after filing and to remain continuously effective until each Investor's Shares purchased hereunder, the earlier of (i) the later date on which such Investor may sell all Shares then held by such Investor without restriction under Rule 144(k) of the third anniversary of the Transfer, plus, in each case, a number of days equal to the number of days, if any, the Registration Statement is suspended or not effective beyond the Grace PeriodSecurities Act, (ii) such time as all Registrable Shares subject to the Transfer may immediately be purchased by such Investor hereunder have been sold during any 90 day period pursuant to Rule 144 under the Securities Act, a registration statement or (iii) two years;
(d) furnish to each Investor with respect to the closing of an acquisition of the Registrable Securities in exchange for publicly traded stock (i.e., stock that has been Shares registered under the Registration Statement such number of copies of Prospectuses and preliminary Prospectuses (a "Preliminary Prospectus") in conformity with the requirements of the Securities Act for issuance and such other documents as such Investor may reasonably request promptly after receiving such request, in order to facilitate the public sale or other disposition of all or any of the Shares by such Investor, provided, however, that the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to such Investor shall be subject to the receipt by the Company of reasonable assurances from the Investor that such Investor will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(e) timely file documents required of the Company for blue sky clearance in states specified in writing by each Investor, provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is listed on a national securities exchange not now so qualified or Nasdaqhas not so consented;
(f) bear all expenses in connection with the procedures in paragraph (a) through (e) of another entity this Section 4.1 and the registration of the Shares pursuant to the Registration Statement; and
(g) advise each Investor, promptly after it shall receive notice or obtain knowledge of the "issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Period")Statement or of the initiation or threat of any proceeding for that purpose; and it will promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued. In Subject to the terms herein, in the event that Form S-3 the Registration Statement is unavailable not filed by the Filing Date, the Company shall, for no additional consideration, pay to each Investor as liquidated damages and not as a penalty an amount in cash equal to one percent (1%) of the amount invested by such registrationInvestor for each 30 day period in which the Registration Statement remains unfiled; provided, however, that in no event shall the amount of liquidated damages payable by the Company to any Investor exceed twelve (12%) of the amount invested by such Investor. The Company understands that each Investor disclaims being an underwriter, but if such Investor is deemed an underwriter by the SEC, the Company shall use not be relieved of any obligations it has hereunder, PROVIDED, HOWEVER that if the Company receives notification from the SEC that such other form as Investor is available deemed an underwriter, then the period by which the Company is obligated to submit an acceleration request to the SEC shall be extended for a reasonable period not to exceed the earlier of (i) the 90th day after such a registration. For purposes SEC notification, or (ii) 120 days after the initial filing of this Section 1.1(a), "Grace Period" shall mean a suspension under Section 1.2(b) and 1.2(c) in excess of sixty (60) days in the aggregate in any twelve month period of time;Registration Statement with the SEC.
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