Registration Procedures and Expenses. The Company shall: (a) subject to receipt of reasonably necessary information from the Holder, prepare and file with the Securities and Exchange Commission (“SEC”), within fifteen (15) business days after the closing price of the Company’s common stock (the “Common Stock”) for five (5) consecutive trading days is at least $5.00 per share, as reported by the domestic stock exchange or over-the-counter market on which the shares of Common Stock are listed (the “Filing Date”), a registration statement (the “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) to enable the resale by the Holder from time to time of (x) the Warrant Shares issuable and (y) the shares of Common Stock issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing (collectively, the “Registrable Securities”); (b) use its best efforts, subject to receipt of necessary information from each Holder, to cause the Registration Statement to become effective as soon as practicable, but in no event later than ninety (90) days after the Filing Date (the “Required Effective Date”). If the Registration Statement (x) has not been filed by the applicable Required Effective 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 thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within twenty (20) business days (the “Required Cure Date”) by a post-effective amendment to 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, Required Effective Date or Required Cure Date, as the case may be, and each 30th day thereafter, make a payment to each Holder as partial compensation for such delay (the “Late Registration Payments”) equal to one percent (1%) of the purchase price paid for the Warrant Shares and the Warrant purchased by the Holder and not previously sold by the Holder or otherwise registered by the Company pursuant to Section 1(a) or Section 6 until the Registration Statement is filed or declared effective by the SEC, as 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 purchase price. Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid to the Holder by wire transfer or check within five business days after the earlier of (i) the 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 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 (the “Prospectus”) included as part of the Registration Statement as may be necessary to keep the Registration Statement current and effective for a period ending on the earlier of (i) the date on which the Holder may sell Registrable Securities pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (ii) such time as all Registrable Securities purchased by such Holder in the Offering have been sold pursuant to a registration statement or Rule 144 (the “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 other disposition of all or any of the Registrable Securities by the Holder; (e) file documents required of the Company for 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; (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 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 each 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 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, 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 Holder’s Registrable Securities shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Securities Exchange Act of 1934, as amended (“Exchange Act”); and (iii) furnish to each Holder, (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 Holder of any rule or regulation of the SEC that permits the selling of any such Registrable Securities without registration. 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 obligations it has hereunder.
Appears in 3 contracts
Sources: Registration Rights Agreement (Prides Capital Partners, LLC), Registration Rights Agreement (Ediets Com Inc), Registration Rights Agreement (Prides Capital Partners, LLC)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of reasonably necessary information from the HolderInvestors, prepare and file with the Securities and Exchange Commission (“SEC”), within fifteen thirty (1530) business days Calendar Days after the closing price of the Company’s common stock Closing Date (the “Common Stock”) for five (5) consecutive trading days is at least $5.00 per share, as reported by the domestic stock exchange or over-the-counter market on which the shares of Common Stock are listed (the “Required Filing Date”), a registration statement (the “Registration Statement”) 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) to enable the resale of the Shares by the Holder Investors from time to time of (x) the Warrant Shares issuable and (y) the shares of Common Stock issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing (collectively, the “Registrable Securities”)time;
(b) use its best efforts, subject to receipt of necessary information from each Holderthe Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than ninety (90) days unless such Registration statement is reviewed by the SEC, in which case the number of days shall be increased to one hundred twenty (120) days after the Filing Closing Date (the “Required Effective Date”). If the Registration Statement (xi) has not been filed by the applicable Required Effective Date, Filing Date or (yii) has not been declared effective by the SEC on or before the Required Effective Date or (z) is filed and declared effective but shall thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within twenty (20) business days (the “Required Cure Date”) by a post-effective amendment to such Registration Statement that cures such failure and that is itself immediately declared effective, then the Company shall, on the business day immediately following the Required Filing Date, Date (if not then so filed) and the Required Effective Date or Required Cure Date, as the case may be(if not then so effective), and on each 30th day anniversary thereafter, make a payment to each Holder the Investor as partial compensation for such delay (the “Late Registration Payments”) an amount equal to one half of one percent (10.5%) of the purchase price Purchase Price paid for the Warrant Shares and the Warrant purchased by the Holder and not previously sold by the Holder or otherwise registered by the Company pursuant to Section 1(a) or Section 6 Investor, until the Registration Statement is filed or declared effective by the SEC. Notwithstanding the foregoing, as the case may be; provided, however, that in no event shall the payments made pursuant to this paragraph total of all Late Registration Payments exceed in the aggregate ten percent (b)10%) of such Purchase Price. Late Registration Payments, if any, exceed in the aggregate twelve percent (12%) 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 Holder Investor by wire transfer or check within five business days (5) Business Days after the earlier of (i) the end of date that 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 Registration Statementpayment is due;
(c) use its commercially reasonable best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus (the “Prospectus”) included as part of the Registration Statement Prospectus as may be necessary to keep the Registration Statement current and effective for a period ending on the earlier of (i) the date on which the Holder Investor may sell Registrable Securities Shares pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (ii) such time as all Registrable Securities Shares purchased by such Holder Investor in the this Offering have been sold pursuant to a registration statement or Rule 144 (the “Effectiveness Period”)144, and to notify each Holder Investor promptly upon each the Registration Statement and each post-effective amendment thereto, being declared effective by the SEC;
(d) furnish to any Holder the Investor such number of copies (in paper or electronic version) of the Registration Statements Statement and the Prospectuses Prospectus (including supplemental prospectuses) ), as the Holder Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities Shares by the HolderInvestor;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the HolderInvestor; 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 Shares pursuant to the Registration StatementsStatement;
(g) advise the HolderInvestors, 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 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 Holder Investor the benefits of Rule 144 and any or other rule or regulation of the SEC that may at any time permit the Holder Investor to sell Registrable Securities to the public Shares 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 HolderInvestor’s Registrable Securities Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the HolderInvestor’s Registrable Securities Shares shall have been resoldsold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Securities Exchange Act of 1934, as amended (“Exchange Act”); and (iii) furnish to each Holder, (A) the Investor upon request a written statement by that the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act, (B) a copy (in paper or electronic version) 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 Holder of any rule or regulation of the SEC that permits the selling of any such Registrable Securities Shares without registration. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 1 that the Investor shall furnish to the Company such information and representations regarding Investor, 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 and/or sale under Rule 144. The Company understands that the Holder Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Holder Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 3 contracts
Sources: Registration Rights Agreement (Quantum Fuel Systems Technologies Worldwide Inc), Registration Rights Agreement (Quantum Fuel Systems Technologies Worldwide Inc), Registration Rights Agreement (Quantum Fuel Systems Technologies Worldwide Inc)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of reasonably necessary information from the HolderInvestors reasonably requested by the Company, prepare and file with the Securities and Exchange Commission (“SEC”), within fifteen ten (1510) business days after the closing price of the Company’s common stock (the “Common Stock”) for five (5) consecutive trading days is at least $5.00 per share, as reported by the domestic stock exchange or over-the-counter market on which the shares of Common Stock are listed (the “Filing Closing Date”), a registration statement on Form S-3 (the “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) to enable the resale of the Shares by the Holder Investors from time to time through the automated quotation system of the Nasdaq Stock Market or in privately-negotiated transactions, and provide the Investor at least two (x2) the Warrant Shares issuable business days to review and (y) the shares of Common Stock issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect provide comments to the foregoing (collectively, Registration Statement before filing with the “Registrable Securities”)SEC;
(b) use its best efforts, subject to receipt of necessary information from each Holderthe Investor reasonably requested by the Company, to cause the Registration Statement to become effective as soon as practicable, but in no event later than ninety sixty (9060) days after the Filing Date (Registration Statement is filed by the “Required Effective Date”)Company. The Company shall notify each representative of the Investor listed on the signature page to the Stock Purchase Agreement, if any, of the effectiveness of the Registration Statement on the day that the SEC declares the Registration Statement effective. If the Registration Statement (x) has not been filed by the applicable Required Effective Date, (y) has not been declared effective by the SEC on or before the Required Effective date that is 90 days after the Closing Date or (z) is filed and declared effective but shall thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within twenty (20) business days (the “Required Cure Effective Date”) by a post-effective amendment to such Registration Statement that cures such failure and that is itself immediately declared effective), the Company shall, on the business 91st day immediately following the Required Filing Date, Required Effective Date or Required Cure Date, as the case may be, and each 30th day thereafter, make a payment to each Holder the Investor as partial compensation for such delay (the “Late Registration Payments”) equal to one percent (1%) % of the purchase price paid for the Warrant Shares and the Warrant purchased by the Holder Investor and not previously sold by the Holder or otherwise registered by Investor (but in no event to exceed 8% in the Company pursuant to Section 1(aaggregate) or Section 6 until the Registration Statement is filed or declared effective by the SEC, as 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 purchase price. The Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid to the Holder Investor by wire transfer or check within five business days after the earlier of (i) the end of each thirty 30 day period following the Required Effective Date, Required Filing Date or Required Cure Date, as applicable or (ii) the effective date of the 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 (the “Prospectus”) included as part of the Registration Statement Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period ending on not exceeding, with respect to each Investor’s Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Holder Investor may sell Registrable Securities pursuant to paragraph (kall Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Registrable Securities Shares purchased by such Holder Investor in the this Offering have been sold pursuant to a registration statement or Rule 144 (the “Effectiveness Period”)statement, and to notify each Holder Investor promptly upon each the Registration Statement and each post-effective amendment thereto, being declared effective by the SEC;
(d) furnish to any Holder the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statements and the 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 Holder Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities Shares by the HolderInvestor;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the HolderInvestor; 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 6.1 and the registration of the Registrable Securities Shares pursuant to the Registration Statements;Statement; and
(g) advise the HolderInvestors, promptly after it shall receive receives notice or obtain obtains knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of each 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 . With a view to making available to the Holder 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 Holder Investor to sell Registrable Securities 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 HolderInvestor’s Registrable Securities Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the HolderInvestor’s Registrable Securities Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Securities Exchange Act of 1934, as amended (“Exchange Act”); and (iii) furnish to each Holderthe 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 Holder Investor of any rule or regulation of the SEC that permits the selling of any such Registrable Securities Shares without registration. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 6.1 that the Investor shall furnish to the Company such information 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 Holder Investor disclaims being an underwriter, but acknowledges that a determination the Investor being deemed an underwriter by the SEC that the Holder is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Endocardial Solutions Inc), Stock Purchase Agreement (Endocardial Solutions Inc), Stock Purchase Agreement (Endocardial Solutions Inc)
Registration Procedures and Expenses. The Company shall:
(a) subject as soon as reasonably practicable, but in no event later than five business days following the later of (a) the date the Company files each Current Report on Form 8-K, or an amendment thereto on Form 8-K/A, containing the financial statements and information required by Item 9.01 of Form 8-K (each, an “Acquisition 8-K”) with respect to receipt any acquisition that has been completed as of reasonably necessary information from the Holderdate hereof, and, to the extent applicable, any pending acquisition which is contemplated pursuant to a written letter of intent entered into by the Company and the proposed acquisition target as of the date hereof (a “Pending Acquisition”), (b) the date the Company files its Annual Report on Form 10-K for the fiscal year ended December 31, 2011 and (c) the date the Company terminates all negotiations with respect to any Pending Acquisition that would require it to file an Acquisition 8-K (the “Filing Deadline”), prepare and file with the Securities and Exchange Commission (“SEC”), within fifteen (15) business days after the closing price of the Company’s common stock (the “Common Stock”) for five (5) consecutive trading days is at least $5.00 per share, as reported by the domestic stock exchange or over-the-counter market on which the shares of Common Stock are listed (the “Filing Date”), a registration statement (the “Registration Statement”) Statement on Form S-3 (except if the Company is not then eligible relating to register on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith) to enable the resale of the Shares by the Holder Purchaser and the Other Purchasers from time to time on The Nasdaq Global Select Market, or the facilities of (x) any national securities exchange on which the Warrant Shares issuable and (y) the shares of Common Stock issued is then traded or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing (collectively, the “Registrable Securities”)in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from each Holderthe Purchasers, to cause the Registration Statement Commission to become effective as soon as practicable, but in no event later than ninety (90) days after the Filing Date (the “Required Effective Date”). If declare the Registration Statement (x) has not been filed by the applicable Required Effective 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 thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within twenty (20) business days (the “Required Cure Date”) by a post-effective amendment to 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, Required Effective Date or Required Cure Date, as the case may be, and each 30th day thereafter, make a payment to each Holder as partial compensation for such delay (the “Late Registration Payments”) equal to one percent (1%) of the purchase price paid for the Warrant Shares and the Warrant purchased by the Holder and not previously sold by the Holder or otherwise registered by the Company pursuant to Section 1(a) or Section 6 until the Registration Statement is filed or declared effective by the SEC, as 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 purchase price. Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid to the Holder by wire transfer or check within five business days after the earlier of (i) 3 days after the end of each thirty day period following Commission has advised the Required Effective DateCompany that the Registration Statement has not been selected for review by the Commission, Required Filing Date or Required Cure Date, as applicable or (ii) 3 days after the Commission has advised the Company the Commission has no more comments with respect to the Registration Statement or (iii) 90 days after the Closing Date (each of (i), (ii) and (iii), the “Effectiveness Deadline”);
(c) by 9:30 a.m., New York City time, on the second business day following the date the Registration Statement is declared effective date of by the Commission, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement;
(cd) use its best efforts to promptly prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the prospectus (the “Prospectus”) included as part of the Registration Statement used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period ending on until the earlier of (i) the date on as of which the Holder Investors may sell Registrable Securities all of the Shares covered by such Registration Statement without restriction pursuant to paragraph (k) of Rule 144 and without the requirement to be in compliance with Rule 144(c)(1) (or any successor thereto) promulgated under the Securities Act or any successor rule (“Rule 144”) or (ii) such time as all Registrable Securities purchased by such Holder in the Offering date on which the Investors shall have been sold pursuant to a registration statement or Rule 144 (the “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 other disposition of all or any of the Registrable Securities by the Holder;
(e) file documents required of the Company for 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;
(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 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 each 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 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, 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) Shares covered by the Registration Statement. For the purpose of this Agreement, “Investor” means a Purchaser or any other rule transferee or assignee thereof to whom a Purchaser assigns its rights as a holder 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 Shares under this Agreement and other documents required of the Company under the Securities Act and under the Securities Exchange Act of 1934, as amended (“Exchange Act”); and (iii) furnish who agrees to each Holder, (A) a written statement become bound by the Company that it has complied with the reporting requirements provisions of the Securities Act this Agreement and the Exchange Act, (B) any transferee or assignee thereof to whom a copy transferee or assignee assigns its rights as a holder of the Company’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, Shares under this Agreement and (C) such other information as may be reasonably requested in order who agrees to avail the Holder of any rule or regulation of the SEC that permits the selling of any such Registrable Securities without registration. The Company understands that the Holder disclaims being an underwriter, but acknowledges that a determination become bound by the SEC that the Holder is deemed an underwriter shall not relieve the Company provisions of any obligations it has hereunder.this Agreement;
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (Acacia Research Corp)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of reasonably necessary information from the each Holder, prepare and file with the Securities and Exchange Commission (“SEC“ SEC ”), within fifteen (15) business days after the closing price of the Company’s common stock (the ““ Common StockStock ”) for five (5) consecutive trading days is at least $5.00 1.50 per share, as reported by the domestic stock exchange or over-the-counter market on which the shares of Common Stock are listed (the ““ Filing DateDate ”), a registration statement (the ““ Registration StatementStatement ”) 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) to enable the resale by the Holder Holders from time to time of (x) the Investor Shares, (y) the Warrant Shares issued or issuable and (yz) the shares of Common Stock issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing (collectively, the ““ Registrable SecuritiesSecurities ”);
(b) use its best efforts, subject to receipt of necessary information from each Holder, to cause the Registration Statement to become effective as soon as practicable, but in no event later than ninety (90) days after the Filing Date (the ““ Required Effective DateDate ”). If the Registration Statement (x) has not been filed by the applicable Required Effective 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 thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within twenty (20) business days (the ““ Required Cure DateDate ”) by a post-effective amendment to 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, Required Effective Date or Required Cure Date, as the case may be, and each 30th 30 th day thereafter, make a payment to each Holder as partial compensation for such delay (the ““ Late Registration PaymentsPayments ”) equal to one percent (1%) of the purchase price paid for the Warrant Shares and the Warrant Warrants purchased by the each Holder and not previously sold by the such Holder or otherwise registered by the Company pursuant to Section 1(a) or Section 6 until the Registration Statement is filed or declared effective by the SEC, as 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 purchase price. Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid to the each Holder by wire transfer or check within five business days after the earlier of (i) the 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 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 (the “Prospectus“ Prospectus ”) included as part of the Registration Statement as may be necessary to keep the Registration Statement current and effective for a period ending on the earlier of (i) the date on which the any Holder may sell Registrable Securities pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (““ Rule 144144 ”) or (ii) such time as all Registrable Securities purchased by such Holder in the Offering have been sold pursuant to a registration statement or Rule 144 (the ““ Effectiveness PeriodPeriod ”), 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 such Holder may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities by the such Holder;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the each 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 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 each 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 each Holder the benefits of Rule 144 and any other rule or regulation of the SEC that may at any time permit the 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 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 Holder’s Registrable Securities shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Securities Exchange Act of 1934, as amended (““ Exchange ActAct ”); and (iii) furnish to each Holder, (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 such Holder of any rule or regulation of the SEC that permits the selling of any such Registrable Securities without registration. The Company understands that the each Holder disclaims being an underwriter, but acknowledges that a determination by the SEC that the such Holder is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Prides Capital Partners, LLC)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of reasonably necessary information from the HolderInvestors, prepare and file with the Securities and Exchange Commission SEC, as soon as practicable, but in no event later than thirty (“SEC”), within fifteen (1530) business days after the closing price of the Company’s common stock (the “Common Stock”) for five (5) consecutive trading days is at least $5.00 per share, as reported by the domestic stock exchange or over-the-counter market on which the shares of Common Stock are listed (the “Filing Closing Date”), a registration statement (the “Registration Statement”) on Form S-3 (except if or in the event that the Company is not then eligible unable to register on use Form S-3, in which case such registration shall be then on another appropriate form in accordance herewithForm S-1) (the "Registration Statement") to enable the resale of the Shares by the Holder Investors from time to time through the automated quotation system of (x) the Warrant Shares issuable and (y) the shares of Common Nasdaq Stock issued Market or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing (collectively, the “Registrable Securities”)in privately-negotiated transactions;
(b) use its best reasonable efforts, subject to receipt of necessary information from each Holderthe Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than ninety (90) days after the Filing Date (Registration Statement is filed by the “Required Effective Date”)Company. If Notwithstanding the foregoing, if the Registration Statement is not declared effective by July 15, 2000 (xthe "Final Effectiveness Date") has and does not been filed remain effective for thirty (30) continuous days thereafter, the Investor shall be entitled to a stock dividend in the amount of two percent (2%) of the Shares purchased by such Investor hereunder, provided that an additional stock dividend in the applicable Required amount of one and one-half percent (1.5%) of the Shares purchased hereunder shall be made at each of the first two three-month anniversaries of the Final Effective Date, (y) Date if the Registration Statement has not been declared effective by and remained effective for thirty (30) continuous days from the SEC on or before the Required Effective Date or (z) is filed and declared effective but shall thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within twenty (20) business days (the “Required Cure Date”) by a post-effective amendment to 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, Required Effective Date or Required Cure Date, as the case may be, and each 30th day thereafter, make a payment to each Holder as partial compensation for such delay (the “Late Registration Payments”) equal to one percent (1%) date of the purchase price paid for the Warrant Shares and the Warrant purchased by the Holder and first effectiveness as of such three month anniversaries; provided further that any such stock dividend shall not previously sold by the Holder or otherwise registered by the Company pursuant to Section 1(a) or Section 6 until the Registration Statement is filed or declared effective by the SEC, as 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 five percent (125%) 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 Holder by wire transfer or check within five business days after the earlier of (i) the 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 Registration Statement;).
(c) use its best reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus (the “Prospectus”) included as part of the Registration Statement Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period ending on not exceeding, with respect to each Investor's Shares purchased hereunder, the earlier earliest of (i) the second anniversary of the Closing Date, (ii) the date on which the Holder Investor may sell Registrable Securities pursuant to paragraph (kall Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Registrable Securities Shares purchased by such Holder Investor in the this Offering have been sold pursuant to a registration statement or Rule 144 (the “Effectiveness Period”), and to notify each Holder promptly upon each Registration Statement and each post-effective amendment thereto, being declared effective by the SEC;statement.
(d) furnish to any Holder the Placement Agent and to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statements Statement, Prospectuses and Preliminary Prospectuses in conformity with the Prospectuses (including supplemental prospectuses) requirements of the Securities Act and such other documents as the Holder Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities Shares by the HolderInvestor, 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 normal blue sky clearance in states specified in writing by the Holder; 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 1 7.1 and the registration of the Registrable Securities Shares pursuant to the Registration Statements;Statement, other than fees and expenses, if any, of counsel or other advisors to the Investors, provided, however, that the Company shall pay the reasonable fees and expenses of one firm of attorneys for the Investors as a group, or underwriting discounts, brokerage fees and commissions incurred by the Investors, if any; and
(g) advise the HolderInvestors, 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 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 Holder 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 Holder Investor to sell Registrable Securities 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 Holder’s Registrable Securities 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 Holder’s Registrable Securities Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Securities Exchange Act of 1934, as amended (“Exchange Act”); and (iii) furnish to each Holderthe 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 '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 Investor of any rule or regulation of the SEC that permits the selling of any such Registrable Securities Shares without registration. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 7.1 that the Investor shall furnish to the Company such information 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 Holder Investor disclaims being an underwriter, but acknowledges that a determination the Investor being deemed an underwriter by the SEC that the Holder is deemed an underwriter 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) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of reasonably necessary information from the HolderInvestors, prepare and file with the Securities and Exchange Commission (“SEC”), within fifteen (15) as soon as practicable, but in no event later than 30 business days after the closing price of the Company’s common stock (the “Common Stock”) for five (5) consecutive trading days is at least $5.00 per share, as reported by the domestic stock exchange or over-the-counter market on which the shares of Common Stock are listed (the “Filing Closing Date”), a registration statement on Form S-3 (the “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) to enable the resale of the Shares and Warrant Shares by the Holder Investors from time to time through the automated quotation system of (x) the Warrant Shares issuable and (y) the shares of Common Nasdaq Stock issued Market or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing (collectively, the “Registrable Securities”)in privately-negotiated transactions;
(b) use its best efforts, subject to receipt of necessary the information required from each Holderthe Investors pursuant to Section 6(g) below, to cause the Registration Statement to become effective as soon as practicable, but in no event later than ninety (90) 120 days after the Filing Date (Registration Statement is filed by the “Required Effective Date”)Company. If the Registration Statement (x) has not been (1) filed by the applicable Required Effective 30th business day following the Closing Date, (y2) has not been declared effective by the SEC on or before the Required Effective Date earlier of (i) the date that is 90 days after the Closing Date, and (ii) the fifth business day following the date on which the Company is notified by the Commission that the Registration Statement will not be reviewed or is no longer subject to further review and comments or (z3) is filed and declared suspended after the effective but shall thereafter cease to be effective date for more than 10 consecutive days or fail to be usable for its intended purpose without being succeeded within twenty 15 non-consecutive days in the aggregate during any 12 month period (20) business days (the “Required Cure each such date, an Event Date”) by a post-effective amendment to 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 each monthly anniversary of an Event Date, Required Effective Date or Required Cure Date, as pay to the case may be, and each 30th day thereafter, make Investor a payment to each Holder as partial compensation for such delay (the “Late Registration Payments”) cash penalty equal to one 2 percent (1%) of the purchase price paid Purchase Price for the Warrant Shares and the Warrant shares purchased by the Holder and not previously sold by the Holder or otherwise registered by the Company pursuant to Section 1(a) or Section 6 Investor (pro-rated on a daily basis for any partial periods), exclusive of any Warrant Shares, until the Registration Statement is filed or declared effective by the SEC, as the case may be; provided, however, that in no event shall the payments made pursuant to this paragraph SEC (b), if any, exceed in the aggregate twelve percent (12%) of such purchase price. Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid rounded up to the Holder nearest dollar after aggregating all Shares held by wire transfer or check within five business days the Investor) (such amounts shall accrue interest at the rate of 18% per annum for any periods after the earlier of (i) the 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 Registration Statementsuch monthly anniversary that damages are unpaid);
(c) use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus (the “Prospectus”) included as part of the Registration Statement Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period ending on not exceeding, with respect to each Investor’s Shares and Warrant Shares purchased hereunder, the earlier of (i1) the date on which the Holder Investor may sell Registrable Securities all Shares and Warrant Shares then held by the Investor without restriction by volume limitations pursuant to paragraph (kRule 144(k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (ii2) such time as all Registrable Securities Shares purchased by such Holder Investor in the this Offering have been sold pursuant to a registration statement or Rule 144 (the “Effectiveness Period”), and to notify each Holder promptly upon each Registration Statement and each post-effective amendment thereto, being declared effective by the SECstatement;
(d) furnish to any Holder the Investor with respect to the Shares and Warrant Shares registered for resale under the Registration Statement such number of copies of the Registration Statements and the Statement, Prospectuses (including supplemental prospectuses) and preliminary versions of the Prospectus filed with the Securities and Exchange Commission (“Preliminary Prospectuses”) in conformity with the requirements of the Securities Act and such other documents as the Holder Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities Shares or Warrant Shares by the HolderInvestor, 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;
(e) file documents required of the Company Company, if any, for normal blue sky clearance in (i) in all U.S. jurisdictions in which any of the Shares or Warrant Shares are originally sold, and (ii) in states specified in writing by the Holder; Investor, provided, however, that that, as to clause (ii) 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 6.1 and the registration of the Registrable Securities resale of the Shares or Warrant Shares pursuant to the Registration Statements;Statement; and
(g) advise the HolderInvestor, 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 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
(h) with . With a view to making available to the Holder 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 Holder Investor to sell Registrable Securities Shares or Warrant 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 HolderInvestor’s Registrable Securities Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the HolderInvestor’s Registrable Securities Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Securities Exchange Act of 1934, as amended (“Exchange Act”); and (iii) furnish to each Holderthe 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 Holder Investor of any rule or regulation of the SEC that permits the selling of any such Registrable Securities Shares without registration. The It shall be a condition precedent to the obligations of the Company understands to take any action pursuant to this Section 6.1 that the Holder disclaims being an underwriter, but acknowledges that a determination Investor shall furnish to the Company its then current beneficial ownership and the name of the individual having voting or dispositive control over the Shares or Warrant Shares to be sold by the SEC that Investor, and the Holder is deemed an underwriter intended method of disposition of such securities as shall not relieve be required to effect the Company registration of any obligations it has hereunderthe resale of the Shares and Warrant Shares.
Appears in 1 contract
Sources: Stock and Warrant Purchase Agreement (Act Teleconferencing Inc)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of reasonably necessary information from as soon as practicable, but in no event later than thirty days following the HolderClosing Date (the "Filing Deadline"), prepare and file with the Securities and Exchange Commission (“SEC”), within fifteen (15) business days after SEC the closing price Registration Statement relating to the resale of the Company’s common stock Common Stock and or Conversion Shares (the “Common Stock”) for five (5) consecutive trading days is at least $5.00 per share, as reported by the domestic stock exchange or over-the-counter market on which the including shares of Common Stock are listed issuable as a result of an anti-dilution adjustment to the Conversion Price (as defined in the “Filing Date”), a registration statement (the “Registration Statement”Articles of Amendment) on Form S-3 (except if and any capital stock of the Company is not then eligible issued with respect to register on Form S-3the Shares or the Conversion Shares as a result of any stock split, in which case such registration shall be on another appropriate form in accordance herewithstock dividend, recapitalization, exchange or similar event or otherwise (collectively, the "Registrable Securities") to enable the resale by the Holder Purchaser and the Other Purchasers from time to time on the NYSE, or the facilities of (x) any national securities exchange on which the Warrant Shares issuable and (y) the shares of Common Stock issued is then traded or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing (collectively, the “Registrable Securities”)in privately-negotiated transactions;
(b) use its best efforts, subject to receipt of necessary information from each Holderthe Purchasers, to cause the SEC to declare the Registration Statement to become effective as soon as practicablewithin 45 days or, but in no event later than ninety (90) if the Registration Statement is selected for review by the SEC, 120 days after the Filing Date (Closing Date, and in any event no later than five business days following notification from the “Required Effective Date”). If SEC that the Registration Statement will not be subject to review or that the SEC has no further comments to the Registration Statement (x) has not been filed by the applicable Required "Effective 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 thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within twenty (20) business days (the “Required Cure Date”) by a post-effective amendment to 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, Required Effective Date or Required Cure Date, as the case may be, and each 30th day thereafter, make a payment to each Holder as partial compensation for such delay (the “Late Registration Payments”) equal to one percent (1%) of the purchase price paid for the Warrant Shares and the Warrant purchased by the Holder and not previously sold by the Holder or otherwise registered by the Company pursuant to Section 1(a) or Section 6 until the Registration Statement is filed or declared effective by the SEC, as the case may be; provided, however, that in no event shall the payments made pursuant to this paragraph (bDeadline"), if any, exceed in the aggregate twelve percent (12%) 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 Holder by wire transfer or check within five business days after the earlier of (i) the 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 Registration Statement;
(c) use its best efforts to promptly prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus (the “Prospectus”) included as part of the Registration Statement Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period ending on until the earlier earliest of (i) one year after the effective date on which of the Holder may sell Registration Statement or (ii) such time as Registrable Securities become eligible for resale by each of the Purchasers without any volume limitations or other restrictions pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor other rule (“Rule 144”) or (ii) of similar effect; provided that, for the avoidance of 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 purchased by such Holder in the Offering have been sold pursuant to a registration statement the Registration Statement or Rule 144 (the “Effectiveness Period”), and to notify each Holder promptly upon each Registration Statement and each post-effective amendment thereto, being declared effective by the SEC144;
(d) furnish to any Holder 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 the Registration Statements prospectuses and the Prospectuses (including supplemental prospectuses) such other documents as the Holder Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities by the HolderPurchaser;
(e) file documents required of the Company for normal blue sky Blue Sky clearance in states specified in writing by the HolderPurchaser; 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 paragraphs (a) through (e) of this Section 1 7.1 and the registration of the Registrable Securities pursuant to the Registration StatementsStatement, 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 Registrable Securities pursuant to the Registration Statement;
(g) advise file a Form D with respect to the HolderShares 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 Registrable Securities under Rule 144 to the Securities Act, for a period of one year from Closing, use its reasonable best efforts to comply with the requirements of Rule 144, including without limitation, use its reasonable best 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 statements 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 misleading (provided that the Company shall endeavor that such notice not contain any material, nonpublic information), and, promptly after it shall receive notice prepare a supplement or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of each amendment to such Registration Statement to correct such untrue statement or of the initiation of any proceeding for that purpose; and it will promptly omission;
(l) use its commercially reasonable best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, 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 being sold of the issuance of such order and the resolution thereof or its withdrawal at receipt of actual written notice of the earliest possible moment if initiation or written threat of any proceeding for such stop order should be issuedpurpose; and
(hm) with a view to making available include in the "plan of distribution" section of the Registration Statement disclosure substantially to the Holder the benefits of Rule 144 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."
(n) refrain from preparing 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 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 Holder’s Registrable Securities shall have been resold; (ii) file filing with the SEC in a timely manner all reports and other documents required of Registration Statements until the Company under Registration Statement relating to the Securities Act and under the Securities Exchange Act of 1934, as amended (“Exchange Act”); and (iii) furnish to each Holder, (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 Holder of any rule or regulation of the SEC that permits the selling of any such Registrable Securities without registrationis effective. The Company understands that the Holder Purchaser disclaims being an underwriter, but acknowledges that a determination by the SEC that the Holder is Purchaser being deemed an underwriter shall not relieve the Company of any obligations it has hereunder.. If the SEC requires that the Purchaser be named as an underwriter in the Registration Statement, the Purchaser may (and the Company will use its best efforts to allow) withdraw its Securities from the Registration Statement. A draft of the proposed form of the Registration Statement 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 shall:
(a) subject to receipt of reasonably necessary information from the HolderInvestors, prepare and file with the Securities and Exchange Commission SEC, as soon as practicable, but in no event later than thirty (“SEC”), within fifteen (1530) business days after the closing price of the Company’s common stock (the “Common Stock”) for five (5) consecutive trading days is at least $5.00 per share, as reported by the domestic stock exchange or over-the-counter market on which the shares of Common Stock are listed (the “Filing Closing Date”), a registration statement (the “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"Registration Statement") to enable the resale of the Shares by the Holder Investors from time to time through the automated quotation system of the Nasdaq Stock Market or in privately negotiated transactions. If the Registration Statement is not declared effective by August 2, 2000 (xthe "Final Effectiveness Date") and does not remain effective for 30 continuous days from the Warrant Shares issuable and (y) the shares first date of Common Stock issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing (collectivelyeffectiveness, the “Registrable Securities”);Purchaser shall be entitled to a stock dividend in the amount of 2%; provided that the amount of such stock dividend shall increase by 1.5% at each of the first two three-month anniversaries of the Final Effectiveness Date if the Registration Statement has not been declared effective and remained effective for 30 continuous days from the date of first effectiveness as of such three month anniversaries; provided further that any such stock dividend shall not exceed in the aggregate 5%.
(b) use its best reasonable efforts, subject to receipt of necessary information from each Holderthe Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than ninety (90) days after the Filing Date (the “Required Effective Date”). If the Registration Statement (x) has not been filed by the applicable Required Effective 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 thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within twenty (20) business days (the “Required Cure Date”) by a post-effective amendment to 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, Required Effective Date or Required Cure Date, as the case may be, and each 30th day thereafter, make a payment to each Holder as partial compensation for such delay (the “Late Registration Payments”) equal to one percent (1%) of the purchase price paid for the Warrant Shares and the Warrant purchased by the Holder and not previously sold by the Holder or otherwise registered by the Company pursuant to Section 1(a) or Section 6 until the Registration Statement is filed or declared effective by the SEC, as 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 purchase price. Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid to the Holder by wire transfer or check within five business days after the earlier of (i) the 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 Registration StatementCompany;
(c) use its best reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus (the “Prospectus”) included as part of the Registration Statement Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period ending on not exceeding, with respect to each Investor's Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Holder Investor may sell Registrable Securities pursuant to paragraph (kall Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Registrable Securities Shares purchased by such Holder Investor in the this Offering have been sold pursuant to a registration statement or Rule 144 (the “Effectiveness Period”), and to notify each Holder promptly upon each Registration Statement and each post-effective amendment thereto, being declared effective by the SECstatement;
(d) furnish to any Holder the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statements Statement, Prospectuses and Preliminary Prospectuses in conformity with the Prospectuses (including supplemental prospectuses) requirements of the Securities Act and such other documents as the Holder Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities Shares by the HolderInvestor, 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 normal blue sky clearance in states specified in writing by the Holder; 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 1 7.1 and the registration of the Registrable Securities Shares pursuant to the Registration Statements;Statement; and
(g) advise the HolderInvestor, 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 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 Holder 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 Holder Investor to sell Registrable Securities 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 date on which the Company is not required to keep the Registration Statement current and effective with respect to the Investor's Shares, as specified in paragraph (Ac) 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 Holder’s Registrable Securities shall have been resoldabove; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Securities Exchange Act of 1934, as amended (“Exchange Act”); and (iii) furnish to each Holderthe 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 '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 Investor of any rule or regulation of the SEC that permits the selling of any such Registrable Securities Shares without registration. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 7.1 that the Investor shall furnish to the Company such information 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 Holder Investor disclaims being an underwriter, but acknowledges that a determination the Investor being deemed an underwriter by the SEC that the Holder is deemed an underwriter 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) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Sources: Stock Purchase Agreement (Incyte Pharmaceuticals Inc)
Registration Procedures and Expenses. The Company hereby agrees that it shall:
(a) subject to receipt of reasonably necessary information from the HolderInvestors, prepare and file with the Securities SEC as soon as practicable and Exchange Commission in no event later than sixty (“SEC”)60) days following the Second Closing (or, within fifteen (15) business days after the closing price of in case the Company’s common stock Shareholders do not vote to approve the sale of the Additional Shares at the Second Closing, sixty (the “Common Stock”60) for five days following a Shareholder meeting at which such vote was taken) (5) consecutive trading days is at least $5.00 per shareeach, as reported by the domestic stock exchange or over-the-counter market on which the shares of Common Stock are listed (the “Filing Date”), a registration statement on Form S-3 (the “Registration Statement”) on Form S-3 (except if ), 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 Company is not then eligible to register on Form S-3statement therein, in light of the circumstances in which case such registration shall be on another appropriate form in accordance herewith) they were made, not misleading, to enable the resale by of the Holder from time to time of (x) the Shares and Warrant Shares issuable and (y) the only those additional shares of Common Stock issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to set forth in the foregoing Disclosure Schedule (collectively, the “Registrable SecuritiesShares”);
(b) by the Investors from time to time on Nasdaq and use its best efforts, subject to receipt of necessary information from each Holder, all reasonable efforts to cause the such Registration Statement to become be declared effective as soon promptly as practicable, but in no event later than ninety (90) days possible after the Filing Date (the “Required Effective Date”). If the Registration Statement (x) has not been filed by the applicable Required Effective Date, (y) has not been declared filing and to remain continuously effective by the SEC on or before the Required Effective Date or (z) is filed and declared effective but shall thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within twenty (20) business days (the “Required Cure Date”) by a post-effective amendment to 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, Required Effective Date or Required Cure Date, as the case may be, and each 30th day thereafter, make a payment to each Holder as partial compensation for such delay (the “Late Registration Payments”) equal to one percent (1%) of the purchase price paid for the Warrant Shares and the Warrant purchased by the Holder and not previously sold by the Holder or otherwise registered by the Company pursuant to Section 1(a) or Section 6 until the Registration Statement is filed or declared effective by the SEC, as 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 purchase price. Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid to the Holder by wire transfer or check within five business days after the earlier of (i) the 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 later of the Registration Statement;
(c) use its best efforts fifth anniversary of the Second Closing, provided, however, if there is no Second Closing, then the fifth anniversary of the Initial Closing, plus, in each case, a number of days equal to prepare and file with the SEC such amendments and supplements to number of days, if any, the Registration Statement and is suspended or not effective beyond the prospectus (the “Prospectus”) included as part of the Registration Statement as may be necessary to keep the Registration Statement current and effective for a period ending on the earlier of (i) the date on which the Holder may sell Registrable Securities pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or Grace Period, (ii) such time as all Registrable Securities Shares purchased by such Holder in the Offering have been sold Investor pursuant to a registration statement this Agreement or the Warrants, as the case may be, may immediately be sold during any 90 day period pursuant to Rule 144 under the Securities Act, or (iii) the “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 closing 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 other disposition of all or any an acquisition of the Registrable Securities by in exchange for publicly traded stock (i.e., stock that has been registered under the Holder;
(e) file documents required of the Company Securities Act for normal blue sky clearance in states specified in writing by the Holder; provided, however, that the Company shall not be required issuance to qualify to do business such Investor and is listed on a national securities exchange 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 (eNasdaq) of this Section 1 and another entity (the registration of “Registration Period”). In the Registrable Securities pursuant to the Registration Statements;
(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 each Registration Statement or of the initiation of any proceeding event that Form S-3 is unavailable 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 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, the Company covenants and agrees to 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(k) 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 the Company under the Securities Act and under the Securities Exchange Act of 1934, as amended (“Exchange Act”); and (iii) furnish to each Holder, (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 form 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 is available for such Registrable Securities without a registration. The Company understands that For purposes of this Section 4.1(a), “Grace Period” shall mean a suspension under Section 4.2(b) and 4.2(c) in excess of sixty (60) days in 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 aggregate in any twelve month period of any obligations it has hereunder.time;
Appears in 1 contract
Sources: Securities Purchase Agreement (Fiberstars Inc /Ca/)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of as soon as reasonably necessary information from practicable, but in no event later than five (5) days following the HolderSecond Closing Date, or if the Second Closing shall not have taken place, within 45 days after the Initial Closing Date, then in no event later than 45 days after the Initial Closing Date (such date, “Filing Date”), prepare and file with the Securities and Exchange Commission (“SEC”), within fifteen (15) business days after the closing price of the Company’s common stock (the “Common Stock”) for five (5) consecutive trading days is at least $5.00 per share, as reported by the domestic stock exchange or over-the-counter market on which the shares of Common Stock are listed (the “Filing Date”), a registration statement (the “Registration Statement”) Statement on Form S-3 (except if relating to 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) to enable sale of the resale Securities by the Holder from time to time of (x) the Warrant Shares issuable and (y) the Purchaser, as well as any shares of Common Stock issued or issuable upon any stock split, dividend or other distribution, recapitalization or other similar event with respect to the foregoing Securities (collectivelysuch shares together with the Securities are collectively referred to as, the “Registrable SecuritiesShares”) from time to time on the American Stock Exchange, or the facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions (the parties acknowledge that the Company may choose to include the Shares on a registration statement with other similar securities issued by the Company);
(b) use its best efforts, subject to receipt of necessary information from each Holderthe Purchaser, to cause the Commission to declare the Registration Statement to become effective as soon as practicable, but in no event later than ninety (90) within 45 days after the Filing Date (such date, the “Required Effective Date”). If However, so long as the Company filed the Registration Statement (x) has not been filed by the applicable Required Effective Filing Date, (y) has not been declared effective by if the SEC on or before Registration Statement receives Commission review, then the Required Effective Date or will be the seventy-fifth (z75th) is filed and declared effective but shall thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within twenty (20) business days (calendar day after the “Required Cure Date”) by a post-effective amendment to 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, Required Effective Date or Required Cure Date, as the case may be, and each 30th day thereafter, make a payment to each Holder as partial compensation for such delay (the “Late Registration Payments”) equal to one percent (1%) of the purchase price paid for the Warrant Shares and the Warrant purchased by the Holder and not previously sold by the Holder or otherwise registered by the Company pursuant to Section 1(a) or Section 6 until the Registration Statement is filed or declared effective by the SEC, as 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 purchase price. Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid to the Holder by wire transfer or check within five business days after the earlier of (i) the 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 Registration Statement;
(c) use its best efforts to promptly prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the prospectus (the “Prospectus”) included as part of the Registration Statement used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period ending on until the earlier earliest of (i) two years after the effective date on which of the Holder may sell Registrable Securities pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) Registration Statement, or (ii) such time as all Registrable Securities purchased the Shares become eligible for resale by such Holder in the Offering have been sold non-affiliates pursuant to a registration statement or Rule 144 (144(k) under the “Effectiveness Period”)Securities Act of 1933, and to notify each Holder promptly upon each Registration Statement and each post-effective amendment thereto, being declared effective by the SECas amended;
(d) promptly furnish to any Holder 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 the Registration Statements prospectuses and the Prospectuses (including supplemental prospectuses) such other documents as the Holder Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities Shares by the HolderPurchaser;
(e) file documents required of the Company for normal blue sky Blue Sky clearance in states specified in writing by the HolderPurchaser; 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 paragraphs (a) through (e) of this Section 1 7.1 and the registration of the Registrable Securities Shares pursuant to the Registration StatementsStatement, other than fees and expenses, if any, of counsel or other advisers to the Purchaser or underwriting discounts, brokerage fees and commissions incurred by the Purchaser, if any;
(g) advise file a Form D with respect to the Holder, Securities as required under Regulation D and to provide a copy thereof to the Purchaser promptly after it shall receive filing;
(h) issue a press release describing the transactions contemplated by this Agreement on each of the Closing Dates;
(i) make available, while the Registration Statement is effective and available for resale, its Chief Executive Officer, Chief Financial Officer, and Chief Administrative Officer for questions regarding information which the Purchaser may reasonably request in order to fulfill any due diligence obligation on its part; and
(j) promptly provide to the Purchaser notice of (i) effectiveness of the Registration Statement, (ii) any Suspension, or obtain knowledge of (iii) 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 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 respect to the 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, 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 Holder’s Registrable Securities shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Securities Exchange Act of 1934, as amended (“Exchange Act”); and (iii) furnish to each Holder, (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 Holder of any rule or regulation of the SEC that permits the selling of any such Registrable Securities without registrationRegistration Statement. The Company understands that the Holder Purchaser disclaims being an underwriter, but acknowledges that a determination by the SEC that the Holder is 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 completed by the Purchaser is attached hereto as Appendix II.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of reasonably necessary information from the Holder, The Company shall prepare and file with the Securities and Exchange Commission (“SEC”), within fifteen (15) business days after the closing price of the Company’s common stock (the “Common Stock”) for five (5) consecutive trading days is at least $5.00 per share, as reported by the domestic stock exchange or over-the-counter market on which the shares of Common Stock are listed (the “Filing Date”), a registration statement (the “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) to enable the resale by the Holder from time to time of (x) the Warrant Shares issuable and (y) the shares of Common Stock issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing (collectively, the “Registrable Securities”);
(b) use its best efforts, subject to receipt of necessary information from each Holder, to cause the Registration Statement to become effective promptly as soon as practicablereasonably practicable following Closing, but in no event later than ninety 30 days following Closing, a registration statement on Form S-3 (90or any successor to Form S-3), covering the resale of the Registrable Securities (as defined below) days after the Filing Date (the “Required Effective DateS-3 Registration Statement”). If ) and as soon as reasonably practicable thereafter but in no event later than 90 days following the filing of the S-3 Registration Statement (x) has not been filed by 120 days in the applicable Required Effective Date, (y) has not been declared effective by event of a full review of the SEC on or before the Required Effective Date or (z) is filed and declared effective but shall thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within twenty (20) business days (the “Required Cure Date”) by a post-effective amendment to such S-3 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, Required Effective Date or Required Cure Date, as the case may be, and each 30th day thereafter, make a payment to each Holder as partial compensation for such delay (the “Late Registration Payments”) equal to one percent (1%) of the purchase price paid for the Warrant Shares and the Warrant purchased by the Holder and not previously sold by the Holder or otherwise registered by the Company pursuant to Section 1(a) or Section 6 until the Registration Statement is filed or declared effective by the SEC, as the case may be; provided, however, that in no event shall the payments made pursuant to this paragraph (b), if anyto effect such registration and any related qualification or compliance with respect to all Registrable Securities held by the Purchasers. For purposes of this Agreement, exceed in the aggregate twelve percent (12%) 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 Holder by wire transfer or check within five business days after the earlier of term “Registrable Securities” shall mean (i) the end of each thirty day period following the Required Effective Date, Required Filing Date or Required Cure Date, as applicable or Warrant; (ii) the effective date Common Shares and Warrant Shares; and (iii) any Common Stock 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 Common Shares or Warrant Shares. In the event that Form S-3 (or any successor form) is or becomes unavailable to register the resale of the Registrable Securities at any time prior to the expiration of the Purchaser’s Registration Statement;
(c) use its best efforts Rights pursuant to Section 6.6, the Company shall to prepare and file with the SEC such amendments and supplements to SEC, as promptly as reasonably practicable following the Registration Statement and the prospectus Closing but in no event later than 30 days following Closing, a registration statement on Form S-1 (the “Prospectus”) included as part of the Registration Statement as may be necessary to keep the Registration Statement current and effective for a period ending on the earlier of (i) the date on which the Holder may sell Registrable Securities pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (ii) such time as all Registrable Securities purchased by such Holder in the Offering have been sold pursuant to a registration statement or Rule 144 (the “Effectiveness Period”Form S-1), and to notify each Holder promptly upon each Registration Statement and each post-effective amendment thereto, being declared effective by covering 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 other disposition of all or any resale of the Registrable Securities (the “S-1 Registration Statement” and collectively the S-3 Registration Statement, the “Registration Statement”) and as soon as reasonably practicable thereafter but in no event later than 90 days following the filing of the S-1 Registration Statement (120 days in the event of a full review of the S-1 Registration Statement by the Holder;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the Holder; providedSEC), 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 effect such registration of the Registrable Securities pursuant to the Registration Statements;
(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 each 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 Holder the benefits of Rule 144 and any other rule related qualification 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 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 Holder’s Registrable Securities shall have been resold; (ii) file compliance with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Securities Exchange Act of 1934, as amended (“Exchange Act”); and (iii) furnish to each Holder, (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 Holder of any rule or regulation of the SEC that permits the selling of any such Registrable Securities without registration. 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 obligations it has hereunder.respect
Appears in 1 contract
Sources: Common Stock and Warrant Purchase Agreement (Pw Eagle Inc)
Registration Procedures and Expenses. The Company shall:, following the conversion of the Shares into Common Stock, which shall occur upon the earlier of either (i) receipt of approval by the Company's stockholders of the terms of the issuance and sale of the Shares, upon such approval the Shares shall be converted into shares of Common Stock or (ii) the one-year anniversary of the Closing Date, upon which the Shares shall automatically be converted into shares of Common Stock (the earlier to occur of such dates, the "Conversion Date"):
(a) subject to receipt of reasonably necessary information from the Holder, prepare and file with the Securities and Exchange Commission (“SEC”), within fifteen (15) business days after the closing price of the Company’s common stock (the “Common Stock”) for five (5) consecutive trading days is at least $5.00 per share, as reported by the domestic stock exchange or over-the-counter market on which the shares of Common Stock are listed (the “Filing Date”), a registration statement (the “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) to enable the resale by the Holder from time to time of (x) the Warrant Shares issuable and (y) the shares of Common Stock issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing (collectively, the “Registrable Securities”);
(b) use its best efforts, subject to receipt of necessary information from each Holder, to cause the Registration Statement to become effective as soon as practicable, but in no event later than ninety (90) 30 days after following the Filing Date (receipt by the “Required Effective Date”). If Company of all of the Purchasers' Registration Statement Questionnaires, file with the Commission the Registration Statement (x) has not been filed on Form S-3 relating to the sale of the Underlying Shares by the applicable Required Effective DatePurchaser from time to time on the Nasdaq National Market or the facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions;
(b) use its reasonable efforts, (y) has not been declared effective by subject to receipt of necessary information from the SEC on or before Purchasers, to cause the Required Effective Date or (z) is filed and declared effective but shall thereafter cease Commission to be effective or fail notify the Company of the Commission's willingness to be usable for its intended purpose without being succeeded within twenty (20) business days (declare the “Required Cure Date”) by a post-effective amendment to 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, Required Effective Date or Required Cure Date, as the case may be, and each 30th day thereafter, make a payment to each Holder as partial compensation for such delay (the “Late Registration Payments”) equal to one percent (1%) of the purchase price paid for the Warrant Shares and the Warrant purchased by the Holder and not previously sold by the Holder or otherwise registered by the Company pursuant to Section 1(a) or Section 6 until effective within 75 days after the Registration Statement is filed or declared effective by the SEC, as 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 purchase price. Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid to the Holder by wire transfer or check within five business days after the earlier of (i) the 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 Registration StatementCompany;
(c) use its best efforts to prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the prospectus (the “Prospectus”) included as part of the Registration Statement used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period ending on until the earlier of (i) two years after the effective date of the Registration Statement or (ii) the date on which the Holder Underlying Shares may sell Registrable Securities pursuant to paragraph (k) be resold by the Purchasers without registration by reason of Rule 144 144(k) under the Securities Act or any successor other rule (“Rule 144”) or (ii) such time as all Registrable Securities purchased by such Holder in the Offering have been sold pursuant to a registration statement or Rule 144 (the “Effectiveness Period”), and to notify each Holder promptly upon each Registration Statement and each post-effective amendment thereto, being declared effective by the SECof similar effect;
(d) furnish to any Holder the Purchaser with respect to the Underlying Shares registered under the Registration Statement (and to each underwriter, if any, of such Underlying Shares) such reasonable number of copies of the Registration Statements prospectuses and the Prospectuses (including supplemental prospectuses) such other documents as the Holder Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities Underlying Shares by the HolderPurchaser; provided, however, that 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;
(e) file documents required of the Company for normal blue sky Blue Sky clearance in states specified in writing by the HolderPurchaser; 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
(f) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph paragraphs (a) through (e) of this Section 1 7.1 and the registration of the Registrable Securities Underlying Shares pursuant to the Registration Statements;
(g) advise Statement, other than fees and expenses, if any, of counsel or other advisers to the HolderPurchaser or the Other Purchasers or underwriting discounts, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order brokerage fees and commissions incurred by the SEC delaying Purchaser or suspending the effectiveness of each 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 Other Purchasers, if such stop order should be issued; and
(h) with a view to making available to the Holder the benefits of Rule 144 and any. Notwithstanding any other rule or regulation provision of the SEC that may at any time permit the Holder to sell Registrable Securities to the public without registrationthis Agreement, the Company covenants and hereby 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 Holder’s Registrable Securities shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Securities Exchange Act of 1934, as amended (“Exchange Act”); and (iii) furnish to each Holder, (A) a written statement by the Company that it has complied with may only suspend 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 Holder use of any rule or regulation prospectus as described in Section 5(b) of the SEC that permits the selling of this Agreement three times during any such Registrable Securities without registration. The Company understands 365-day period and that the Holder disclaims being an underwriter, but acknowledges that a determination by the SEC that the Holder is deemed an underwriter total number of days for any individual suspension shall not relieve the Company of any obligations it has hereunderexceed 60.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of reasonably necessary information from as soon as practicable, but in no event later than thirty days following the HolderClosing Date (the “Filing Deadline”), prepare and file with the Securities and Exchange Commission (“SEC”), within fifteen (15) business days after SEC the closing price Registration Statement relating to the resale of the Company’s common stock Common Stock and or Conversion Shares (the “Common Stock”) for five (5) consecutive trading days is at least $5.00 per share, as reported by the domestic stock exchange or over-the-counter market on which the including shares of Common Stock are listed issuable as a result of an anti-dilution adjustment to the Conversion Price (as defined in the “Filing Date”), a registration statement (the “Registration Statement”Articles of Amendment) on Form S-3 (except if and any capital stock of the Company is not then eligible issued with respect to register on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith) to enable the resale by Shares or the Holder from time to time Conversion Shares as a result of (x) the Warrant Shares issuable and (y) the shares of Common Stock issued or issuable upon any stock split, dividend or other distributionstock dividend, recapitalization recapitalization, exchange or similar event with respect to the foregoing or otherwise (collectively, the “Registrable Securities”)) by the Purchaser and the Other Purchasers from time to time on the NYSE, or the facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions;
(b) use its best efforts, subject to receipt of necessary information from each Holderthe Purchasers, to cause the SEC to declare the Registration Statement to become effective as soon as practicablewithin 45 days or, but in no event later than ninety (90) if the Registration Statement is selected for review by the SEC, 120 days after the Filing Date (Closing Date, and in any event no later than five business days following notification from the “Required Effective Date”). If SEC that the Registration Statement will not be subject to review or that the SEC has no further comments to the Registration Statement (x) has not been filed by the applicable Required Effective 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 thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within twenty (20) business days (the “Required Cure DateEffective Deadline”) by a post-effective amendment to 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, Required Effective Date or Required Cure Date, as the case may be, and each 30th day thereafter, make a payment to each Holder as partial compensation for such delay (the “Late Registration Payments”) equal to one percent (1%) of the purchase price paid for the Warrant Shares and the Warrant purchased by the Holder and not previously sold by the Holder or otherwise registered by the Company pursuant to Section 1(a) or Section 6 until the Registration Statement is filed or declared effective by the SEC, as 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 purchase price. Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid to the Holder by wire transfer or check within five business days after the earlier of (i) the 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 Registration Statement;
(c) use its best efforts to promptly prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus (the “Prospectus”) included as part of the Registration Statement Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period ending on until the earlier earliest of (i) one year after the effective date on which of the Holder may sell Registration Statement or (ii) such time as Registrable Securities become eligible for resale by each of the Purchasers without any volume limitations or other restrictions pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor other rule (“Rule 144”) or (ii) of similar effect; provided that, for the avoidance of 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 purchased by such Holder in the Offering have been sold pursuant to a registration statement the Registration Statement or Rule 144 (the “Effectiveness Period”), and to notify each Holder promptly upon each Registration Statement and each post-effective amendment thereto, being declared effective by the SEC144;
(d) furnish to any Holder 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 the Registration Statements prospectuses and the Prospectuses (including supplemental prospectuses) such other documents as the Holder Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities by the HolderPurchaser;
(e) file documents required of the Company for normal blue sky Blue Sky clearance in states specified in writing by the HolderPurchaser; 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 paragraphs (a) through (e) of this Section 1 7.1 and the registration of the Registrable Securities pursuant to the Registration StatementsStatement, 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 Registrable Securities pursuant to the Registration Statement;
(g) advise file a Form D with respect to the HolderShares 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 Registrable Securities under Rule 144 to the Securities Act, for a period of one year from Closing, use its reasonable best efforts to comply with the requirements of Rule 144, including without limitation, use its reasonable best 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 statements 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 misleading (provided that the Company shall endeavor that such notice not contain any material, nonpublic information), and, promptly after it shall receive notice prepare a supplement or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of each amendment to such Registration Statement to correct such untrue statement or of the initiation of any proceeding for that purpose; and it will promptly omission;
(l) use its commercially reasonable best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, 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 being sold of the issuance of such order and the resolution thereof or its withdrawal at receipt of actual written notice of the earliest possible moment if initiation or written threat of any proceeding for such stop order should be issuedpurpose; and
(hm) with a view to making available include in the “plan of distribution” section of the Registration Statement disclosure substantially to the Holder the benefits of Rule 144 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.
(n) refrain from preparing 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 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 Holder’s Registrable Securities shall have been resold; (ii) file filing with the SEC in a timely manner all reports and other documents required of Registration Statements until the Company under Registration Statement relating to the Securities Act and under the Securities Exchange Act of 1934, as amended (“Exchange Act”); and (iii) furnish to each Holder, (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 Holder of any rule or regulation of the SEC that permits the selling of any such Registrable Securities without registrationis effective. The Company understands that the Holder Purchaser disclaims being an underwriter, but acknowledges that a determination by the SEC that the Holder is Purchaser being deemed an underwriter shall not relieve the Company of any obligations it has hereunder.. If the SEC requires that the Purchaser be named as an underwriter in the Registration Statement, the Purchaser may (and the Company will use its best efforts to allow) withdraw its Securities from the Registration Statement. A draft of the proposed form of the Registration Statement 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 shall:
(a) subject to receipt of reasonably necessary information from the each Holder, prepare and file with the Securities and Exchange Commission (“SEC”), within fifteen (15) business days after the closing price of the Company’s common stock (the “Common Stock”) for five (5) consecutive trading days is at least $5.00 1.50 per share, as reported by the domestic stock exchange or over-the-counter market on which the shares of Common Stock are listed (the “Filing Date”), a registration statement (the “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) to enable the resale by the Holder Holders from time to time of (x) the Investor Shares, (y) the Warrant Shares issued or issuable and (yz) the shares of Common Stock issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing (collectively, the “Registrable Securities”);
(b) use its best efforts, subject to receipt of necessary information from each Holder, to cause the Registration Statement to become effective as soon as practicable, but in no event later than ninety (90) days after the Filing Date (the “Required Effective Date”). If the Registration Statement (x) has not been filed by the applicable Required Effective 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 thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within twenty (20) business days (the “Required Cure Date”) by a post-effective amendment to 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, Required Effective Date or Required Cure Date, as the case may be, and each 30th day thereafter, make a payment to each Holder as partial compensation for such delay (the “Late Registration Payments”) equal to one percent (1%) of the purchase price paid for the Warrant Shares and the Warrant Warrants purchased by the each Holder and not previously sold by the such Holder or otherwise registered by the Company pursuant to Section 1(a) or Section 6 until the Registration Statement is filed or declared effective by the SEC, as 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 purchase price. Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid to the each Holder by wire transfer or check within five business days after the earlier of (i) the 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 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 (the “Prospectus”) included as part of the Registration Statement as may be necessary to keep the Registration Statement current and effective for a period ending on the earlier of (i) the date on which the any Holder may sell Registrable Securities pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (ii) such time as all Registrable Securities purchased by such Holder in the Offering have been sold pursuant to a registration statement or Rule 144 (the “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 such Holder may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities by the such Holder;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the each 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 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 each 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 each Holder the benefits of Rule 144 and any other rule or regulation of the SEC that may at any time permit the 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 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 Holder’s Registrable Securities shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Securities Exchange Act of 1934, as amended (“Exchange Act”); and (iii) furnish to each Holder, (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 such Holder of any rule or regulation of the SEC that permits the selling of any such Registrable Securities without registration. The Company understands that the each Holder disclaims being an underwriter, but acknowledges that a determination by the SEC that the such Holder is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of reasonably necessary information from the HolderInvestor, use commercially reasonable efforts to prepare and file with the Securities and Exchange Commission (“SEC”), within fifteen ten (1510) business days after the closing price of the Company’s common stock (the “Common Stock”) for five (5) consecutive trading days is at least $5.00 per share, as reported by the domestic stock exchange or over-the-counter market on which the shares of Common Stock are listed (the “Filing Closing Date”), a registration statement on Form S-3 (the “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) to enable the resale by of the Holder from time to time of (x) Shares, the Warrant Shares issuable and (y) the shares of Common Stock that may be issued upon conversion of that certain Secured Convertible Note, by and among the Company, Last Chance, Inc., a Nevada corporation, and the Investor, from time to time through the automated quotation system of the Nasdaq SmallCap Market or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing (collectively, the “Registrable Securities”)in privately-negotiated transactions;
(b) use its best efforts, subject to receipt of necessary information from each Holderthe Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than ninety sixty (9060) days after the Filing Date (Registration Statement is filed by the “Required Effective Date”)Company. If the Registration Statement (x) has not been filed by the applicable Required Effective Date, (y) has not been declared effective by the SEC on or before the Required Effective Date or (z) date that is filed and declared effective but shall thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within twenty (20) 15 business days after the Closing Date (the “Required Cure Effective Date”) by a post-effective amendment to such Registration Statement that cures such failure and that is itself immediately declared effective), the Company shall, on the business following day immediately following the Required Filing Date, Required Effective Date or Required Cure Date, as the case may be, and each 30th day for a period of 59 days thereafter, make a payment to each Holder the Investor as partial compensation for such delay (the “Late Registration Payments”) equal to one percent (1%) of $500 per day. If the purchase price paid for the Warrant Shares and the Warrant purchased Registration Statement has not been declared effective by the Holder and not previously sold by SEC on or before the Holder or otherwise registered by date that is 75 days after the Closing Date, the Company pursuant to Section 1(a) or Section 6 shall, on the 76th day and thereafter, until the Registration Statement is filed or declared effective by the SEC, make a payment to the Investor as compensation for such delay (the case may be; provided, however, that in no event shall “Additional Late Registration Payments”) equal to $1,000 per day. The Late Registration Payments and the payments made pursuant to this paragraph (b), if any, exceed in the aggregate twelve percent (12%) of such purchase price. Additional Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid to the Holder Investor by wire transfer or check within five (5) business days after each calendar month during which any such payments become due and payable to the earlier of (i) the 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 Registration StatementInvestor;
(c) use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus (the “Prospectus”) included as part of the Registration Statement Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period ending on not exceeding, with respect to each Investor’s Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Holder Investor may sell Registrable Securities pursuant to paragraph (kall Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Registrable Securities Shares purchased by such Holder Investor in the this Offering have been sold pursuant to a registration statement or Rule 144 (the “Effectiveness Period”)statement, and to notify each Holder Investor promptly upon each the Registration Statement and each post-effective amendment thereto, being declared effective by the SEC;
(d) furnish to any Holder the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statements and the 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 Holder Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities Shares by the HolderInvestor; 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;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the HolderInvestor; 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 6.1 and the registration of the Registrable Securities Shares pursuant to the Registration Statements;Statement; and
(g) advise the HolderInvestors, 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 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 With a view to making available to the Holder 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 Holder Investor to sell Registrable Securities 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 HolderInvestor’s Registrable Securities Shares and the Warrant Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the HolderInvestor’s Registrable Securities Shares and/or the Warrant Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Securities Exchange Act of 1934, as amended (“Exchange Act”); and (iii) furnish to each Holderthe Investor upon written 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 Holder Investor of any rule or regulation of the SEC that permits the selling of any such Registrable Securities Shares without registration. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 6.1 that the Investor shall furnish to the Company such information regarding itself, the Shares and/or the Warrant 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 and/or the Warrant Shares. The Company understands that the Holder Investor disclaims being an underwriter, but acknowledges that a determination the Investor being deemed an underwriter by the SEC that the Holder is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of reasonably necessary information from the HolderInvestors, prepare and file with the Securities and Exchange Commission SEC, as soon as practicable, but in no event later than thirty (“SEC”), within fifteen (1530) business days after the closing price of the Company’s common stock (the “Common Stock”) for five (5) consecutive trading days is at least $5.00 per share, as reported by the domestic stock exchange or over-the-counter market on which the shares of Common Stock are listed (the “Filing Closing Date”), a registration statement (the “Registration Statement”) on Form S-3 (except if or in the event that the Company is not then eligible unable to register on use Form S-3, in which case such registration shall be then on another appropriate form in accordance herewithForm S-1) (the "Registration Statement") to enable the resale of the Shares by the Holder Investors from time to time through the automated quotation system of (x) the Warrant Shares issuable and (y) the shares of Common Nasdaq Stock issued Market or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing (collectively, the “Registrable Securities”)in privately-negotiated transactions;
(b) use its best reasonable efforts, subject to receipt of necessary information from each Holderthe Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than ninety (90) days after the Filing Date (Registration Statement is filed by the “Required Effective Date”)Company. If Notwithstanding the foregoing, if the Registration Statement is not declared effective by July 15, 2000 (xthe "Final Effectiveness Date") has and does not been filed remain effective for thirty (30) continuous days thereafter, the Investor shall be entitled to a stock dividend in the amount of two percent (2%) of the Shares purchased by such Investor hereunder, provided that an additional stock dividend in the applicable Required amount of one and one-half percent (1.5%) of the Shares purchased hereunder shall be made at each of the first two three-month anniversaries of the Final Effective Date, (y) Date if the Registration Statement has not been declared effective by and remained effective for thirty (30) continuous days from the SEC on or before the Required Effective Date or (z) is filed and declared effective but shall thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within twenty (20) business days (the “Required Cure Date”) by a post-effective amendment to 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, Required Effective Date or Required Cure Date, as the case may be, and each 30th day thereafter, make a payment to each Holder as partial compensation for such delay (the “Late Registration Payments”) equal to one percent (1%) date of the purchase price paid for the Warrant Shares and the Warrant purchased by the Holder and first effectiveness as of such three month anniversaries; provided further that any such stock dividend shall not previously sold by the Holder or otherwise registered by the Company pursuant to Section 1(a) or Section 6 until the Registration Statement is filed or declared effective by the SEC, as 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 five percent (125%) 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 Holder by wire transfer or check within five business days after the earlier of (i) the 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 Registration Statement;).
(c) use its best reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus (the “Prospectus”) included as part of the Registration Statement Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period ending on not exceeding, with respect to each Investor's Shares purchased hereunder, the earlier earliest of (i) the second anniversary of the Closing Date, (ii) the date on which the Holder Investor may sell Registrable Securities pursuant to paragraph (kall Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Registrable Securities Shares purchased by such Holder Investor in the this Offering have been sold pursuant to a registration statement or Rule 144 (the “Effectiveness Period”), and to notify each Holder promptly upon each Registration Statement and each post-effective amendment thereto, being declared effective by the SEC;statement.
(d) furnish to any Holder the Placement Agent and to the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statements Statement, Prospectuses and Preliminary Prospectuses in conformity with the Prospectuses (including supplemental prospectuses) requirements of the Securities Act and such other documents as the Holder Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities Shares by the HolderInvestor, 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 normal blue sky clearance in states specified in writing by the Holder; 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 1 7.1 and the registration of the Registrable Securities Shares pursuant to the Registration Statements;Statement, other than fees and expenses, if any, of counsel or other advisors to the Investors, provided, however, that the Company shall pay the reasonable fees and expenses of one firm of attorneys for the Investors as a group, or underwriting discounts, brokerage fees and commissions incurred by the Investors, if any; and
(g) advise the HolderInvestors, 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 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 Holder 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 Holder Investor to sell Registrable Securities Shares to the public without registration, the Company covenants and agrees to use its commercially reasonable efforts to: and
(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 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 Holder’s Registrable Securities Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Securities Exchange Act of 1934, as amended (“Exchange Act”); and (iii) furnish to each Holderthe 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 '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 Investor of any rule or regulation of the SEC that permits the selling of any such Registrable Securities Shares without registration. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 7.1 that the Investor shall furnish to the Company such information 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 Holder Investor disclaims being an underwriter, but acknowledges that a determination the Investor being deemed an underwriter by the SEC that the Holder is deemed an underwriter 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) the 90th day after such SEC notification, or (ii) 120 days after the initial filing of the Registration Statement with the SEC.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of reasonably necessary information from the HolderInvestors, prepare and file with the Securities and Exchange Commission (“"SEC”"), within fifteen (15) business days Business Days after the closing price of the Company’s common stock Closing Date (the “Common Stock”) for five (5) consecutive trading days is at least $5.00 per share, as reported by the domestic stock exchange or over-the-counter market on which the shares of Common Stock are listed (the “Filing Date”"REQUIRED FILING DATE"), a registration statement (the “Registration Statement”) 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) to enable the resale of the Shares by the Holder Investors from time to time of (x) the Warrant Shares issuable and (y) the shares of Common Stock issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing (collectively, the “Registrable Securities”)time;
(b) use its best efforts, subject to receipt of necessary information from each Holderthe Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than ninety sixty (9060) days after the Filing Date (Registration Statement is filed by the “Required Effective Date”)Company. If the Registration Statement (xi) has not been filed by the applicable Required Effective Date, Filing Date or (yii) has not been declared effective by the SEC on or before the Required Effective date that is 120 days after the Closing Date or (z) is filed and declared effective but shall thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within twenty (20) business days (the “Required Cure Date”) by a post-effective amendment to such Registration Statement that cures such failure and that is itself immediately declared effective"REQUIRED EFFECTIVE DATE"), the Company shall, on the business day Business Day immediately following the Required Filing Date, Date or the Required Effective Date or Required Cure Date, as the case may be, and each 30th day thereafter, make a payment to each Holder the Investor as partial compensation for such delay (the “Late Registration Payments”"LATE REGISTRATION PAYMENTS") equal to one percent (1%) % of the purchase price paid for the Warrant Shares and the Warrant purchased by the Holder Investor and not previously sold by the Holder or otherwise registered by the Company pursuant to Section 1(a) or Section 6 Investor until the Registration Statement is filed or declared effective by the SEC, as 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%) 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 Holder Investor by wire transfer or check within five business days Business Days after the earlier of (i) the end of each thirty 30 day period following the Required Effective Date, Required Filing Date or Required Cure Date, as applicable or (ii) the effective date of the 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 (the “Prospectus”) included as part of the Registration Statement 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 Closing Date, (ii) the date on which the Holder Investor may sell Registrable Securities Shares pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule "RULE 144”") or (iiiii) such time as all Registrable Securities Shares purchased by such Holder Investor in the this Offering have been sold pursuant to a registration statement or Rule 144 (the “Effectiveness Period”)144, and to notify each Holder Investor promptly upon each the Registration Statement and each post-effective amendment thereto, being declared effective by the SEC;
(d) furnish to any Holder the Investor such number of copies of the Registration Statements Statement and the Prospectuses Prospectus (including supplemental prospectuses) as the Holder Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities Shares by the HolderInvestor;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the HolderInvestor; 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 6.1 and the registration of the Registrable Securities Shares pursuant to the Registration StatementsStatement;
(g) advise the HolderInvestors, 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 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 With a view to making available to the Holder Investor the benefits of Rule 144 and any other rule or regulation of the SEC that may at any time permit the Holder Investor to sell Registrable Securities 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 Holder’s Registrable Securities 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 Holder’s Registrable Securities Investor's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Securities Exchange Act of 1934, as amended (“Exchange Act”); and (iii) furnish to each Holderthe 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 '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 Investor of any rule or regulation of the SEC that permits the selling of any such Registrable Securities Shares without registration. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 6.1 that the Investor shall furnish to the Company such information 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 Holder Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Holder Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of reasonably necessary information from the HolderInvestors, prepare and file with the Securities and Exchange Commission SEC, as soon as practicable, but in no event later than thirty (“SEC”), within fifteen (1530) business days after the closing price of the Company’s common stock Closing Date (the “Common Stock”) for five (5) consecutive trading days is at least $5.00 per share, as reported by the domestic stock exchange or over-the-counter market on which the shares of Common Stock are listed (the “"Required Filing Date”"), a registration statement (the “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"Registration Statement") to enable the resale of the Shares and the Warrant Shares (collectively, the "Registrable Securities") by the Holder Investors from time to time through the automated quotation system of (x) the Warrant Shares issuable and (y) the shares of Common Nasdaq Stock issued Market or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing (collectively, the “Registrable Securities”)in privately-negotiated transactions;
(b) use its best commercially reasonable efforts, subject to receipt of necessary information from each Holderthe Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than ninety (90) days after the Filing Date (Registration Statement is filed by the “Required Effective Date”)Company. If the Registration Statement (xi) has not been filed by the applicable Required Effective Date, Filing Date or (yii) has not been declared effective by the SEC on or before the date that is one hundred and twenty (120) days after the Closing Date (the "Required Effective Date or (z) is filed and declared effective but shall thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within twenty (20) business days (the “Required Cure Date”) by a post-effective amendment to such Registration Statement that cures such failure and that is itself immediately declared effective"), the Company shall, on the business day Business Day immediately following the Required Filing Date, Date or the Required Effective Date or Required Cure Date, as the case may be, and each 30th day thereafter, make a payment to each Holder the Investor as partial compensation liquidated damages for such delay (the “"Late Registration Payments”") equal to one percent (1%) 0.5% of the purchase price paid for the Warrant Shares and the Warrant purchased by the Holder Investor and not previously sold by the Holder or otherwise registered by the Company pursuant to Section 1(a) or Section 6 Investor until the Registration Statement is filed or declared effective by the SEC, as 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%) 2.5% of such purchase price; provided further, that no Investor shall be entitled to Late Registration Payments if such Investor has not provided the 11. Company with the information requested by the Company pursuant to Section 7.1(h) hereof, if any, within 20 calendar days after such information has been requested by the Company. Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid to the Holder Investor by wire transfer or check within five business days Business Days after the earlier of (iA) the end of each thirty 30 day period following the Required Effective Date, Required Filing Date or Required Cure Date, as applicable or (iiB) the effective date of the Registration Statement;.
(c) use its best commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus (the “Prospectus”) included as part of the Registration Statement Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period ending on not exceeding, with respect to each Investor's Registrable Securities purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Holder Investor may sell all Registrable Securities pursuant to paragraph (kthen held by the Investor without restriction by the volume limitations of Rule 144(e) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Registrable Securities purchased by such Holder Investor in the this Offering have been sold pursuant to a registration statement or Rule 144 (the “Effectiveness Period”), and to notify each Holder promptly upon each Registration Statement and each post-effective amendment thereto, being declared effective by the SECstatement;
(d) furnish to any Holder the Investor with respect to the Registrable Securities registered under the Registration Statement such number of copies of the Registration Statements Statement, Prospectuses and Preliminary Prospectuses in conformity with the Prospectuses (including supplemental prospectuses) requirements of the Securities Act and such other documents as the Holder Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities by the HolderInvestor, 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 normal blue sky clearance in states specified in writing by the Holder; 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 1 7.1 and the registration of the Registrable Securities pursuant to the Registration Statements;Statement; and
(g) advise the HolderInvestors, 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 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 Holder 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 Holder Investor 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 Holder’s Investor'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 Holder’s Investor's Registrable Securities shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Securities Exchange Act of 1934, as amended (“Exchange Act”); and (iii) furnish to each Holder, (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 Holder of any rule or regulation of the SEC that permits the selling of any such Registrable Securities without registration. 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 obligations it has hereunder.with
Appears in 1 contract
Sources: Common Stock and Warrant Purchase Agreement (Intrabiotics Pharmaceuticals Inc /De)
Registration Procedures and Expenses. The Except for such times as the Company may be required to suspend the use of a prospectus forming a part of the Registration Statement, as further described in Section 5(b) hereof, the Company shall:
(a) subject to receipt of reasonably necessary information from the Holder, prepare and file with the Securities and Exchange Commission (“SEC”), within fifteen (15) business days after the closing price of the Company’s common stock (the “Common Stock”) for five (5) consecutive trading days is at least $5.00 per share, as reported by the domestic stock exchange or over-the-counter market on which the shares of Common Stock are listed (the “Filing Date”), a registration statement (the “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) to enable the resale by the Holder from time to time of (x) the Warrant Shares issuable and (y) the shares of Common Stock issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing (collectively, the “Registrable Securities”);
(b) use its best efforts, subject to receipt of necessary information from each Holder, to cause the Registration Statement to become effective as soon as practicable, but in no event later than ninety thirty (9030) days following the Closing Date, use best efforts to prepare and file with the SEC the Registration Statement on Form S-3 relating to the resale of the Shares by the Purchaser from time to time through the automated quotation system of Nasdaq or the facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions;
(b) use best efforts to cause the Registration Statement to become effective under the Securities Act of 1933, as amended, no later than ten (10) days after the Filing Date (date of filing with the “Required Effective Date”). If the Registration Statement (x) has not been filed by the applicable Required Effective DateSEC, (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 thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within twenty (20) business days (the “Required Cure Date”) by a post-effective amendment to 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, Required Effective Date or Required Cure Date, as the case may be, and each 30th day thereafter, make a payment to each Holder as partial compensation for such delay (the “Late Registration Payments”) equal to one percent (1%) of the purchase price paid for the Warrant Shares and the Warrant purchased by the Holder and not previously sold by the Holder or otherwise registered by the Company pursuant to Section 1(a) or Section 6 until if the Registration Statement is filed or declared effective not reviewed by the SEC, as the case may be; provided, however, that in or no event shall the payments made pursuant to this paragraph (b), if any, exceed in the aggregate twelve percent (12%) 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 Holder by wire transfer or check within five business later than 120 days after the earlier of (i) the end of each thirty day period following the Required Effective Closing Date, Required Filing Date or Required Cure Date, as applicable or (ii) the effective date of if the Registration StatementStatement is reviewed by the SEC;
(c) use its best efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus (the “Prospectus”) included as part of the Registration Statement used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period ending on until the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Holder Purchaser may sell Registrable Securities pursuant to paragraph (k) all Shares then held by the Purchaser within a three-month period without restriction by reason of Rule 144 under the Securities Act ("Rule 144") or any successor other rule (“Rule 144”) of similar effect, or (iiiii) such time as all Registrable Securities Shares purchased by such Holder in the Offering Purchaser have been sold pursuant to a registration statement or Rule 144 (the “Effectiveness Period”), and to notify each Holder promptly upon each Registration Statement and each post-effective amendment thereto, being declared effective by the SECstatement;
(d) so long as the Registration Statement is effective covering the resale of Shares owned by the Purchaser, use best efforts to furnish to any Holder the Purchaser with respect to the Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares) such reasonable number of copies of the Registration Statements prospectuses and the Prospectuses (including supplemental prospectuses) such other documents as the Holder Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities Shares by the HolderPurchaser; provided, however, that 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 laws as may be applicable in connection with any use of such prospectuses;
(e) use commercially reasonable efforts to restrict any suspension referred to in Section 5(b) to no more than ten (10) business days and to restrict suspensions within any 365 day period to no more than twenty-five (25) business days in such period;
(f) use best efforts to file documents required of the Company for normal blue sky clearance in states specified in writing by the HolderPurchaser; 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;
(fg) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph paragraphs (a) through (e) of this Section 1 7.1 and the registration of the Registrable Securities Shares pursuant to the Registration Statements;
(g) advise Statement, other than fees and expenses, if any, of counsel or other advisers to the HolderPurchaser or the Other Purchasers or underwriting discounts, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order brokerage fees and commissions incurred by the SEC delaying Purchaser or suspending the effectiveness of each 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 Other Purchasers, if such stop order should be issuedany; and
(h) with a view to making available to the Holder Purchaser 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 Purchaser to sell Registrable Securities 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 Holder’s Registrable Securities Purchaser's Shares may be resold within a given three-month period pursuant to Rule 144(k) 144 or any other rule of similar effect or (B) such date as all of the Holder’s Registrable Securities Purchaser's Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Securities Exchange Act of 1934, as amended (“Exchange Act”); and (iii) furnish to each HolderPurchaser upon request, as long as Purchaser 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 annual report on Form 10-K or Quarterly Report quarterly report of the Company on Form 10-Q, and (C) such other information as may be reasonably requested in order to avail the Holder Purchaser of any rule or regulation of the SEC that permits the selling of any such Registrable Securities Shares without registration. 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 obligations it has hereunder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Ligand Pharmaceuticals Inc)
Registration Procedures and Expenses. The Company further covenants that it shall:
(a) subject to within 180 days after receipt of reasonably necessary information from any request in the Holderform of Appendix III hereto, by Purchasers owning 66 2/3% of the Shares, prepare and file with the Securities and Exchange Commission the Registration Statement (“SEC”), within fifteen (15the "Registration Statement") business days after relating to the closing price sale of the Company’s common stock (the “Common Stock”) for five (5) consecutive trading days is at least $5.00 per share, as reported Shares by the domestic stock exchange Purchaser from time to time through the automated quotation system of The Nasdaq Small-Cap Market or The Nasdaq National Market, in the over-the-counter market market, on the facilities of any national securities exchange on which the shares Company's common stock is then traded or in privately-negotiated transactions, PROVIDED HOWEVER, that the Company may postpone the filing of Common Stock are listed the Registration Statement for (a) up to 60 days if, in the “Filing Date”)good faith judgment of the Board of Directors of the Company, a the filing of any registration statement during such 60-day period would adversely affect a material proposed or pending acquisition, merger or other extraordinary corporate event to which the Company is or reasonably expects to be a party, or (the “Registration Statement”b) on Form S-3 (except up to 60 days if the Company is not then yet eligible to register file a registration statement on Form S-3S-3 but reasonably expects to become eligible to so file within such 60-day period.
(b) use its best efforts to cause the Shares to be quoted on the automated quotation system of The Nasdaq Small-Cap Market, in The Nasdaq National Market or the facilities of any national securities exchange on which case such registration shall be on another appropriate form in accordance herewith) to enable the resale by the Holder from time to time of (x) the Warrant Shares issuable and (y) the shares of Common Stock issued or issuable upon any stock splitis then traded, dividend or other distribution, recapitalization or similar event with respect to as soon as practicable after request for registration of the foregoing (collectively, the “Registrable Securities”)Shares;
(bc) use its best efforts, subject to receipt of necessary information from each Holderthe Purchasers, to cause the Registration Statement Commission to become effective as soon as practicable, but in no event later than ninety (90) days after notify the Filing Date (Company of the “Required Effective Date”). If Commission's willingness to declare the Registration Statement (x) has not been filed by the applicable Required Effective 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 thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within twenty (20) business 60 days (the “Required Cure Date”) by a post-effective amendment to 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, Required Effective Date or Required Cure Date, as the case may be, and each 30th day thereafter, make a payment to each Holder as partial compensation for such delay (the “Late Registration Payments”) equal to one percent (1%) of the purchase price paid for the Warrant Shares and the Warrant purchased by the Holder and not previously sold by the Holder or otherwise registered by the Company pursuant to Section 1(a) or Section 6 until after the Registration Statement is filed or declared effective by the SEC, as 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 purchase price. Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid to the Holder by wire transfer or check within five business days after the earlier of (i) the 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 Registration StatementCompany;
(cd) use its best efforts to prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the prospectus (the “Prospectus”) included as part of the Registration Statement used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period ending on the earlier of until (i) such shares are sold pursuant to the Registration Statement or (ii) the date on which the Holder Shares may sell Registrable Securities pursuant to paragraph (k) be resold by the Purchasers without registration, by reason of Rule 144 144(k) under the Securities Act or any successor other rule (“Rule 144”) or (ii) such time as all Registrable Securities purchased by such Holder in the Offering have been sold pursuant to a registration statement or Rule 144 (the “Effectiveness Period”), and to notify each Holder promptly upon each Registration Statement and each post-effective amendment thereto, being declared effective by the SECof similar effect;
(de) furnish to any Holder 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 the Registration Statements prospectuses and the Prospectuses (including supplemental prospectuses) such other documents as the Holder Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities Shares by the HolderPurchaser, PROVIDED, HOWEVER, that 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;
(ef) file documents required of the Company for normal blue sky clearance in states specified in writing by the Holder; providedPurchaser, howeverPROVIDED, 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;
(fg) on or prior to the date on which the Registration Statement becomes effective (the "Effective Date"), cause the Accountants to deliver a comfort letter to the Purchasers with respect to the Registration Statement in a form reasonably satisfactory to the Placement Agent and counsel to the Placement Agent;
(h) on or prior to the Effective Date, cause Company Counsel to deliver its legal opinion addressed to Purchasers in a form reasonably satisfactory to the Placement Agent and counsel to the Placement Agent;
(i) on or prior to the Effective Date, deliver a certificate executed by the Chief Executive Officer and the Chief Financial or Accounting Officer of the Company, in form and substance satisfactory to the Placement Agent to the effect that the representations and warranties of the Company set forth in Section 4 hereof are true and correct with respect to the Registration Statement as of the Effective Date and that the Company has complied with all of the agreements and satisfied all of the conditions to be performed by it on or prior to the Effective Date; and
(j) 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 7.1 and the registration of the Registrable Securities Shares pursuant to the Registration Statements;
(g) advise Statement, other than fees and expenses, if any, of counsel or other advisers to the HolderPurchaser or the Other Purchasers or underwriting discounts, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order brokerage fees and commissions incurred by the SEC delaying Purchaser or suspending the effectiveness of each 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 Other Purchasers, if such stop order should be issued; and
(h) with a view to making available to the 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, 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 Holder’s Registrable Securities shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Securities Exchange Act of 1934, as amended (“Exchange Act”); and (iii) furnish to each Holder, (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 Holder of any rule or regulation of the SEC that permits the selling of any such Registrable Securities without registration. 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 obligations it has hereunderany.
Appears in 1 contract
Sources: Purchase Agreement (Cardiodynamics International Corp)
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of reasonably necessary information from the HolderInvestors, prepare and file with the Securities and Exchange Commission (“SEC”), within fifteen ten (1510) business days Business Days after the closing price of the Company’s common stock Closing Date (the “Common Stock”) for five (5) consecutive trading days is at least $5.00 per share, as reported by the domestic stock exchange or over-the-counter market on which the shares of Common Stock are listed (the “Required Filing Date”), a registration statement (the “Registration Statement”) 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) to enable the resale of the Shares by the Holder Investors from time to time on the NYSE or in privately-negotiated transactions; provided, however, that Investor acknowledges that the Company may not be permitted to file a Registration Statement on Form S-3 from February 15, 2004 until such time as its financial statements for the year ended December 31, 2003 are available and have been filed with the SEC, and agrees that the Company may defer the filing in order to ensure compliance with Rule 3-12 of (x) the Warrant Shares issuable and (y) the shares of Common Stock issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing (collectively, the “Registrable Securities”)Regulation S-X;
(b) use its best efforts, subject to receipt of necessary information from each Holderthe Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than ninety sixty (9060) days after the Filing Date (Registration Statement is filed by the “Required Effective Date”)Company. If the Registration Statement (x) has not been filed by the applicable Required Effective Date, (yi) has not been declared effective by the SEC on or before the Required Effective date that is seventy-five (75) days after the Closing Date or (z) is filed and declared effective but shall thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within twenty (20) business days (the “Required Cure Effective Date”) by a post-effective amendment to such Registration Statement that cures such failure and that is itself immediately declared effective), the Company shall, on the business day Business Day immediately following the Required Filing Date, Required Effective Date or Required Cure Date, as the case may be, and each 30th day thereafter, make a payment to each Holder the Investor as partial compensation for such delay (together, the “Late Registration Payments”) equal to one percent (1%) % of the purchase price Purchase Price paid for the Warrant Shares and the Warrant purchased then owned by the Holder and not previously sold by the Holder or otherwise registered by the Company pursuant to Section 1(a) or Section 6 Investor until the Registration Statement is filed or declared effective by the SEC, as 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 purchase pricePurchase Price. Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid to the Holder Investor by wire transfer or check within five business days Business Days after the earlier of (i) the end of each thirty 30 day period following the Required Effective Date, Required Filing Date or Required Cure Date, as applicable or (ii) the effective date of the 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 (the “Prospectus”) included as part of the Registration Statement Prospectus used in connection therewith as may be necessary or advisable to keep the Registration Statement current and effective for a period ending on the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Holder Investor may sell Registrable Securities Shares pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Registrable Securities Shares purchased by such Holder Investor in the this Offering have been sold pursuant to a registration statement or Rule 144 (the “Effectiveness Period”)144, and to notify each Holder Investor promptly upon each the Registration Statement and each post-effective amendment thereto, being declared effective by the SEC;
(d) furnish to any Holder the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statements Statement and the Prospectuses Prospectus (including supplemental prospectuses) filed with the SEC in conformance with the requirements of the Securities Act and other such documents as the Holder Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities Shares by the HolderInvestor;
(e) file documents required of the Company for normal make any necessary 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 consentedfilings;
(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 6.1 and the registration of the Registrable Securities Shares pursuant to the Registration StatementsStatement;
(g) advise the HolderInvestors, 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 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
(h) with With a view to making available to the Holder Investor the benefits of Rule 144 and any other rule or regulation of the SEC that may at any time permit the Holder Investor to sell Registrable Securities Shares to the public without registration, the Company covenants and agrees to use its commercially 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 HolderInvestor’s Registrable Securities may Shares qualify to be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the HolderInvestor’s Registrable Securities Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Securities Exchange Act of 1934, as amended (“Exchange Act”); and (iii) furnish to each Holderthe Investor upon request, as long as the Investor owns any Shares, (A) a written statement by the Company that 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 other information as may be reasonably requested in order to avail the Holder Investor of any rule or regulation of the SEC that permits the selling of any such Registrable Securities Shares without registration. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 6.1 that the Investor shall furnish to the Company such information regarding itself, the Shares to be sold by Investor, and the intended method of disposition of such securities as shall be reasonably requested by the Company to effect the registration of the Shares. The Company understands that the Holder Investor disclaims being an underwriter, but acknowledges that a determination by the SEC that the Holder Investor is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall:
(a) subject to receipt of reasonably necessary information from the HolderInvestors, prepare and file with the Securities and Exchange Commission (“SEC”), within fifteen (15) business days after the closing price of the Company’s common stock (the “Common Stock”) for five (5) consecutive trading days is at least $5.00 per share, as reported by the domestic stock exchange or over-the-counter market on which the shares of Common Stock are listed (the “Filing Closing Date”), a registration statement on Form S-3 (the “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) to enable the resale of the Shares by the Holder Investors from time to time through the automated quotation system of (x) the Warrant Shares issuable and (y) the shares of Common Nasdaq Stock issued Market or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing (collectively, the “Registrable Securities”)in privately-negotiated transactions;
(b) use its best efforts, subject to receipt of necessary information from each Holderthe Investors, to cause the Registration Statement to become effective as soon as practicable, but in no event later than ninety sixty (9060) days after the Filing Date (Registration Statement is filed by the “Required Effective Date”)Company. If the Registration Statement (x) has not been filed by the applicable Required Effective Date, (y) has not been declared effective by the SEC on or before the Required Effective date that is 120 days after the Closing Date or (z) is filed and declared effective but shall thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within twenty (20) business days (the “Required Cure Effective Date”) by a post-effective amendment to such Registration Statement that cures such failure and that is itself immediately declared effective), the Company shall, on the business 121st day immediately following the Required Filing Date, Required Effective Date or Required Cure Date, as the case may be, and each 30th day thereafter, make a payment to each Holder the Investor as partial compensation for such delay (the “Late Registration Payments”) equal to one percent (1%) % of the purchase price paid for the Warrant Shares and the Warrant purchased by the Holder Investor and not previously sold by the Holder or otherwise registered by Investor (but in no event to exceed 5% in the Company pursuant to Section 1(aaggregate) or Section 6 until the Registration Statement is filed or declared effective by the SEC, as 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 purchase price. The Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid to the Holder Investor by wire transfer or check within five business days after the earlier of (i) the end of each thirty 30 day period following the Required Effective Date, Required Filing Date or Required Cure Date, as applicable or (ii) the effective date of the 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 (the “Prospectus”) included as part of the Registration Statement Prospectus used in connection therewith as may be necessary to keep the Registration Statement current and effective for a period ending on not exceeding, with respect to each Investor’s Shares purchased hereunder, the earlier of (i) the second anniversary of the Closing Date, (ii) the date on which the Holder Investor may sell Registrable Securities pursuant to paragraph (kall Shares then held by the Investor without restriction by the volume limitations of Rule 144(e) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (iiiii) such time as all Registrable Securities Shares purchased by such Holder Investor in the this Offering have been sold pursuant to a registration statement or Rule 144 (the “Effectiveness Period”)statement, and to notify each Holder Investor promptly upon each the Registration Statement and each post-effective amendment thereto, being declared effective by the SEC;
(d) furnish to any Holder the Investor with respect to the Shares registered under the Registration Statement such number of copies of the Registration Statements and the 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 Holder Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities Shares by the HolderInvestor; 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;
(e) file documents required of the Company for normal blue sky clearance in states specified in writing by the HolderInvestor; 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 6.1 and the registration of the Registrable Securities Shares pursuant to the Registration Statements;Statement; and
(g) advise the HolderInvestors, 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 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 With a view to making available to the Holder 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 Holder Investor to sell Registrable Securities 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 HolderInvestor’s Registrable Securities Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) such date as all of the HolderInvestor’s Registrable Securities Shares shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Securities Exchange Act of 1934, as amended (“Exchange Act”); and (iii) furnish to each Holderthe 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 Holder Investor of any rule or regulation of the SEC that permits the selling of any such Registrable Securities Shares without registration. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 6.1 that the Investor shall furnish to the Company such information 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 Holder Investor disclaims being an underwriter, but acknowledges that a determination the Investor being deemed an underwriter by the SEC that the Holder is deemed an underwriter shall not relieve the Company of any obligations it has hereunder.
Appears in 1 contract
Registration Procedures and Expenses. The Company shall:
(a) subject use its best efforts to receipt of reasonably necessary information from the Holder, prepare and (i) file a Registration Statement with the Securities and Exchange Commission SEC within thirty (“SEC”), within fifteen (1530) business days after following the closing price Closing Date to register such of the Company’s common stock (the “Common Stock”) Registrable Shares as have been duly authorized for five (5) consecutive trading days is at least $5.00 per share, as reported issuance by the domestic stock exchange or over-the-counter market on which Company as of the shares date of Common Stock are listed (the “Filing Date”), a registration statement (the “Registration Statement”) filing on Form S-3 under the Securities Act (except if the Company providing for shelf registration of such Registrable Shares under SEC Rule 415) or on such other form which is not then eligible appropriate to register on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith) to enable the Registrable Shares for resale by the Holder from time to time of (x) by the Warrant Shares issuable Purchasers, and (yii) as soon as reasonably practicable once the shares portion of Common Stock issued the Registrable Shares that were not registered in the Registration Statement filed under clause (i) above (the "REMAINING REGISTRABLE SHARES") have been duly authorized for issuance by the Company, to amend the Registration Statement filed under clause (i) above, or issuable upon any stock splitfile another substantially similar Registration Statement with the SEC, dividend or other distribution, recapitalization or similar event with respect to register for resale from time to time by the foregoing (collectively, Purchasers all of the “Remaining Registrable Securities”)Shares;
(b) use its best commercially reasonable efforts, subject to receipt of necessary information from each Holderthe Purchasers, to cause the any such Registration Statement filed pursuant to clauses (i) and (ii) of Section 7.2(a) above to become effective as soon as practicable, but in no event later than ninety (90) days promptly after the Filing Date (the “Required Effective Date”). If the Registration Statement (x) has not been filed by the applicable Required Effective 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 thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within twenty (20) business days (the “Required Cure Date”) by a post-effective amendment to filing of such Registration Statement that cures such failure and as practicable but in any event by the date (the "EFFECTIVENESS DEADLINE DATE") that is itself immediately declared effective, the Company shall, on the business day immediately thirty (30) days following the Required Filing Date, Required Effective Date or Required Cure Date, as the case may be, and each 30th day thereafter, make a payment to each Holder as partial compensation for such delay (the “Late Registration Payments”) equal to one percent (1%) date of the purchase price paid for the Warrant Shares and the Warrant purchased by the Holder and not previously sold by the Holder or otherwise registered by the Company pursuant to Section 1(a) or Section 6 until the initial filing of such Registration Statement is filed or declared effective by with the SEC, as the case may be; provided, however, that in no the event shall the payments made pursuant to this paragraph (b), if any, exceed in the aggregate twelve percent (12%) of such purchase price. Late Registration Payments will be prorated on that a daily basis during each 30 day period and will be paid to the Holder by wire transfer or check within five business days after the earlier of (i) the 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 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 (the “Prospectus”) included as part of the Registration Statement as may be necessary to keep the Registration Statement current and effective for a period ending on the earlier of (i) the date on which the Holder may sell Registrable Securities pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) or (ii) such time as all Registrable Securities purchased by such Holder in the Offering have been sold pursuant to a registration statement or Rule 144 (the “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 other disposition of all or any of the Registrable Securities by the Holder;
(e) file documents required of the Company for 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;
(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 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 each 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 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, 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 Holder’s Registrable Securities shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and under the Securities Exchange Act of 1934, as amended (“Exchange Act”); and (iii) furnish to each Holder, (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 Holder of any rule or regulation of the SEC that permits the selling of any such Registrable Securities without registration. 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 obligations it has hereunder.is
Appears in 1 contract
Registration Procedures and Expenses. The (a) Except for such times as the Company shallmay be required to suspend the use of a prospectus forming a part of the Registration Statement (as defined below), the Company will:
(ai) subject on a best efforts basis within thirty (30) days after it has received from ▇▇▇▇▇▇▇-▇▇ ▇▇▇▇▇, Inc. ("Roche") the financial information required to receipt be furnished by Roche to the Company under Section 8.8 of reasonably necessary information from the HolderSale and Purchase Agreement, dated February 2, 2004, between the Company Roche, prepare and file with the Securities and Exchange Commission (“SEC”), within fifteen (15) business days after the closing price of the Company’s common stock (the “Common Stock”) for five (5) consecutive trading days is at least $5.00 per share, as reported by the domestic stock exchange or over-the-counter market on which the shares of Common Stock are listed (the “Filing Date”), a registration statement (the “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"Registration Statement") to enable covering the resale of the Shares by the Holder from time to time of (x) the Warrant Shares issuable and (y) the shares of Common Stock issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing (collectively, the “Registrable Securities”)each Purchaser;
(bii) use its best effortsefforts to cause the Registration Statement, as amended, subject to receipt of necessary information from each Holderthe Purchasers on the questionnaire attached as Appendix E hereto, to cause the Registration Statement to become effective under the Securities Act as soon as practicable, practicable but in any event no event later than ninety (90) days after the Filing Date (the “Required Effective Closing Date”). If the such Registration Statement (x) has covering the Shares is not been filed by the applicable Required Effective Date, (y) has not been declared effective by the SEC Commission on or before prior to ninety (90) days after the Required Effective Closing Date, the Company will make pro rata payments to each Purchaser, as liquidated damages and not as a penalty, in an amount per 30-day period (or pro rata portion thereof) equal to 1.0% of the aggregate amount paid by such Purchaser on the Closing Date or (z) is filed and declared effective but shall thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within twenty (20) business days (the “Required Cure Date”) by a post-effective amendment to Company until 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, Required Effective Date or Required Cure Date, as the case may be, and each 30th day thereafter, make a payment to each Holder as partial compensation for such delay (the “Late Registration Payments”) equal to one percent (1%) of the purchase price paid for the Warrant Shares and the Warrant purchased by the Holder and not previously sold by the Holder or otherwise registered by the Company pursuant to Section 1(a) or Section 6 until the Registration Statement is filed or declared effective by the SEC, as the case may be; provided, however, that Commission. Such payments shall be made to each Purchaser in no event shall the payments made pursuant to this paragraph (b), if any, exceed in the aggregate twelve percent (12%) 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 Holder by wire transfer or check within five cash not later than three business days after the earlier of (i) following the end of each thirty 30-day period following the Required Effective Date, Required Filing Date or Required Cure Date, as applicable or (ii) the effective date of the Registration Statementperiod;
(ciii) use its best efforts to prepare and file with the SEC Commission such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”A) included as part of the Registration Statement as may be necessary to keep the Registration Statement current and continuously effective for a period ending on until the earlier of (i) the date on which second anniversary of the Holder may sell Registrable Securities pursuant to paragraph (k) of Rule 144 under the Securities Act or any successor rule (“Rule 144”) Closing Date, or (ii) such time as all Registrable Securities Shares purchased by such Holder in the Offering Purchasers have been sold pursuant to a registration statement or Rule 144 (the “Effectiveness Period”), and to notify each Holder promptly upon each Registration Statement and each post-effective amendment thereto, being declared effective (B) as may be reasonably requested by the SECa Purchaser in order to incorporate information concerning such Purchaser or such Purchaser's intended method of distribution;
(div) so long as the Registration Statement is effective covering the resale of Shares owned by the Purchasers, furnish to any Holder each Purchaser with respect to the Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares) such reasonable number of copies of the Registration Statements prospectuses and the Prospectuses (including supplemental prospectuses) such other documents as the Holder such Purchaser may reasonably request, request in order to facilitate the public sale or other disposition of all or any of the Registrable Securities Shares by the Holdersuch Purchaser;
(ev) use commercially reasonable efforts to file documents required of the Company for normal blue sky Blue Sky clearance in states specified in writing by the HolderPurchasers; provided, however, that the Company shall not be required to qualify to do business or consent to service of process generally in any jurisdiction in which it the Company is not now so qualified or has not so consented;
(fvi) bear all expenses (other than underwriting discounts and commissions, if any) in connection with the procedures in paragraph paragraphs (a) through (ec) of this Section 1 6.1 and the registration of the Registrable Securities Shares pursuant to the Registration StatementsStatement, 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, in connection with an underwritten offering of the Shares;
(gvii) 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 each Registration Statement or of the initiation of any proceeding for that purpose; and it will promptly use its all commercially reasonable efforts to prevent the issuance of any stop order or other order suspending the effectiveness of such Registration Statement and, if such an order is issued, to obtain its the withdrawal thereof at the earliest possible moment time and to notify each Purchaser of the issuance of such order and the resolution thereof;
(viii) furnish to each Purchaser, on the date that such Registration Statement becomes effective, (x) a letter, dated such date, of outside counsel representing the Company (and reasonably acceptable to such Purchaser) addressed to such Purchaser, confirming the effectiveness of such Registration Statement and, to the knowledge of such counsel, the absence of any stop order, and (y) in the case of an underwriting, (A) an opinion addressed to such Purchaser, dated such date, of such outside counsel, in such form and substance as is required to be given to the underwriters, and (B) a letter addressed to such Purchaser, dated such date, from the Company's independent certified public accountants, in such form and substance as is required to be given by the Company's independent certified public accountants to such underwriters;
(ix) provide to each Purchaser and its representatives, if requested, the opportunity to conduct a reasonable inquiry of the Company's financial and other records during normal business hours and make available its officers, directors and employees for questions regarding information which such stop Purchaser may reasonably request in order should to complete its due diligence, in each case as is customary for similar due diligence examinations; provided that, if the foregoing inspection and information gathering would otherwise disrupt the Company's conduct of its business, such inspection and information gathering shall, to the greatest extent possible, be issuedcoordinated on behalf of the all of the Purchasers by one counsel designated by and on behalf of the Purchasers; and
(hx) permit counsel for the Purchasers to review the Registration Statement and all amendments and supplements thereto, and any comments made by the staff of the Commission and the Company's responses thereto, within a reasonable period of time prior to the filing thereof with the Commission (or, in the case of comments made by the staff of the Commission, within a reasonable period of time following the receipt thereof by the Company); provided, that in the case of clauses (ix) and (x) above, the Company shall not be required to provide, and shall not provide, any Purchaser with material, non-public information unless such Purchaser agrees to receive such information and enters into a written confidentiality agreement with the Company.
(b) The Company shall be permitted to suspend for one or more periods (provided that the aggregate length of such suspension shall not exceed thirty (30) days in any ninety (90)-day day period or ninety (90) days in aggregate in any 365 day period) the actions required under Sections 6.1(a)(iii) to the extent that the Board of Directors of the Company concludes in good faith that because of valid business reasons, including, but not limited to, the acquisition or divestiture of assets, pending corporate developments and similar events, it is in the best interests of the Company to suspend such use of the Registration Statement and the prospectus used in connection therewith.
(c) With a view to making available to the Holder Purchasers the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC Commission that may at any time permit the Holder Purchaser to sell Registrable Securities 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) six months after such date as all of the Holder’s Registrable Securities Purchasers' Shares 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 Purchasers' Shares shall have been resold; (ii) file with the SEC Commission in a timely manner all reports and other documents required of the Company under the Securities Act and under the Securities Exchange Act of 1934, as amended (“Exchange Act”); and (iii) furnish to each Holderthe 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 Securities Act and the Exchange Act, (B) a copy of the Company’s '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 Purchaser of any rule or regulation of the SEC Commission that permits the selling of any such Registrable Securities Shares without registration. 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 obligations it has hereunder.
Appears in 1 contract