Transfer Restrictions and Registration Rights. 5.1 Subscriber acknowledges that it is acquiring the Securities for its own account and for the purpose of investment and not with a view to any distribution or resale thereof within the meaning of the Securities Act and any applicable state or other securities laws ("STATE ACTS"). The Subscriber further agrees that it will not sell, assign or transfer the Securities at any time in violation of the Securities Act or State Acts and acknowledges that, in acquiring Restricted Securities (as such term is defined under the Securities Act), it must continue to bear the economic risk of its investment for an indefinite period of time because of the fact that the Securities have not been registered under the Securities Act or State Acts, and further acknowledges that the Securities may not be sold unless subsequently registered under the Securities Act and State Acts or an exemption from such registration is available. The Subscriber further acknowledges that the Company is not assuming any obligation to register the Securities under the Securities Act or State Acts except as expressly set forth herein. The Subscriber also acknowledges that appropriate legends reflecting the status of the Securities under the Securities Act and State Acts may be placed on the certificates representing such Securities at the time of their transfer and delivery to the holder thereof. 5.2 Except as provided hereafter with respect to registration of the Shares and the Warrant Shares, it shall be a condition to any such transfer that the Company shall be furnished with an opinion of counsel from the holder of such Shares and Warrant Shares, reasonably satisfactory to the Company, to the effect that the proposed transfer would be in compliance with the Securities Act and State Acts. (a) Within ten (10) days after the Closing Date, the Company shall use its best efforts to prepare and file with the SEC on one occasion, a registration statement and such other documents as may be necessary in the opinion of counsel for the Company, and use its best efforts to have such registration statement declared effective as soon as possible after the Closing Date in order to comply with the provisions of the Securities Act so as to permit the registered resale of the Shares and the Warrant Shares for a period of three (3) years following the Closing Date by each and every holder of shares sold in the Offering (the "OFFERING SHARES") who desires to register the resale of their shares. Within five (5) days after the Closing Date, the Company shall give each holder of Offering Shares notice at the address of such holder appearing on the register and transfer records of Company of the Company's intention to register the resale of such Offering Shares. The obligations of the Company to give such notice shall be limited to the Subscriber and any entity which at the time the Offering Shares may have been transferred, which entities, together with the Subscriber and the Placement Agent, are hereafter referred to as "OFFERING HOLDERS." (b) If the registration statement referred to in Section 5.3(a) above has not been declared effective by the SEC on or before May 14, 2001, the Company shall promptly issue to the Subscriber .07 ADS for every ADS purchased in the Offering. In addition, if the registration statement referred to in Section 5.3(a) is not declared effective by the SEC on or before the last day of each month thereafter, the Company shall promptly, in each respective month (and prorated for partial months), issue to the Subscriber .02 ADS for every ADS purchased in the Offering until the registration statement is declared effective by the SEC (rounded up to the nearest share after aggregating all shares held by such Offering Holder). In the event of an issue of further ADSs pursuant to this Section 5.3(b), the Subscriber shall pay the nominal value of each Ordinary Share represented by each ADS it receives. The foregoing payment shall constitute the sole monetary remedy available to the Subscriber in the event that the Company does not comply with the deadlines set forth in this Section 5.3(b) with respect to the effectiveness of the registration statement referred to therein. 5.4 Notwithstanding the foregoing provisions of this Section 5, the Company may voluntarily suspend the effectiveness of any such registration statement for a limited time, which in no event shall be longer than 60 consecutive or non-consecutive days in any 12-month period, if the Company has been advised in writing by counsel or underwriters to the Company that the offering of any Offering Shares pursuant to the registration statement would materially adversely affect, or would be improper in view of (or improper without disclosure in a prospectus), a proposed financing, a reorganization, recapitalization, merger, consolidation, or similar transaction involving the Company. If any event occurs that would cause the registration statement to contain a material misstatement or omission or not to be effective and usable during the period that such registration statement is required to be effective and usable, the Company shall promptly file an amendment to the registration statement and use its best efforts to cause such amendment to be declared effective as soon as practicable thereafter. The Offering Holders shall furnish to the Company such information regarding their holdings and the proposed manner of distribution thereof as the Company may reasonably request and as shall be required in connection with any such registration statement. Notwithstanding any provision contained herein to the contrary, the Company's obligation to include, or continue to include, Offering Shares in any such registration statement under this Section 5 shall terminate to the extent such shares are eligible for resale under Rule 144(k) promulgated under the Securities Act. If the registration statement registering the Shares and the Warrant Shares for resale is suspended more than 60 consecutive or non-consecutive days in any 12-month period, the Company shall promptly issue to the Subscriber .07 ADS for every ADS purchased in the Offering. In addition, if such suspension or stop order is not lifted on or before the last day of each month thereafter, the Company shall promptly, in each respective month (and prorated for partial months), issue to the Subscriber .02 ADS for every ADS purchased in the Offering until the registration statement is declared effective by the SEC (rounded up to the nearest share after aggregating all shares held by such Offering Holder). In the event of an issue of further ADSs pursuant to this Section 5.4, the Subscriber shall pay the nominal value of each Ordinary Share represented by each ADS it receives. 5.5 If and whenever the Company is required by the provisions of this Agreement to use its best efforts to effect the registration of the Offering Shares under the Securities Act for the account of an Offering Holder, the Company will, as promptly as possible: (a) prepare and file with the SEC a registration statement with respect to such securities and use its best efforts to cause such registration statement to become and remain effective; (b) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the requirements of the Securities Act and the rules and regulations promulgated by the SEC thereunder relating to the sale or other disposition of the securities covered by such registration statement; (c) furnish to each Offering Holder such numbers of copies of a prospectus complying with the requirements of the Securities Act, and such other documents as such Offering Holder may reasonably request in order to facilitate the public sale or other disposition of the Offering Shares owned by such Offering Holder, but such Offering Holder shall not be entitled to use any selling materials other than a prospectus; (d) use its best efforts to register or qualify the securities covered by such registration statement under the State Acts as any Offering Holder shall reasonably request, and do any and all such other acts and things as may be necessary or advisable to enable such Offering Holder to consummate the public sale or other disposition of the Offering Shares owned by such Offering Holder in such states; PROVIDED, HOWEVER, that the Company shall not be obligated to register or qualify such securities in any jurisdiction in which such registration or qualification would require the Company to qualify as a foreign corporation or file any general consent to service of process where it is not then so qualified or has not theretofore so consented; and (e) provide a transfer agent and Depositary, which may be a single entity, for the Shares and the Warrant Shares not later than the effective date of the applicable registration statement. 5.6 Except as provided below in this Section 5, the expenses incurred by the Company in connection with action taken by the Company to comply with this Section 5, including, without limitation, all registration and filing fees, printing and delivery expenses, accounting fees, fees and disbursements of counsel to the Company, consultant and expert fees, premiums for liability insurance, if applicable, obtained in connection with a registration statement filed to effect such compliance, if applicable, and all expenses, including counsel fees, for complying with State Acts, shall be paid by the Company. All fees and disbursements of any counsel, experts, or consultants employed by any Offering Holder shall be borne by such Offering Holder. The Company shall not be obligated in any way in connection with any registration pursuant to this Section 5, for any selling commissions or discounts payable to any underwriter or broker for securities to be sold by such Offering Holder. It shall be a condition precedent to the obligation of the Company to take any action pursuant to this Section 5 that the Company shall have received an undertaking satisfactory to it from each Offering Holder to pay all expenses required to be borne by such Offering Holder and to furnish or cause to be furnished to the Company, specifically for use in the preparation of the registration statement and prospectus, written information concerning (i) the securities held by such Offering Holder and any underwriter of such securities, (ii) the intended method of disposition thereof and (iii) any additional information or documentation as the Company shall reasonably request and as may be required by administrators of the Securities Act or State Acts in connection with the action to be taken by the Company hereunder pursuant to such registration. 5.7 The Company will (to the extent it is lawful for it to do so) indemnify and hold harmless each Offering Holder, its officers, directors and each underwriter of such securities, and any person who controls such Offering Holder or underwriter within the meaning of Section 15 of the Securities Act, against all claims, actions, losses, damages, liabilities and expenses, joint or several, to which any of such persons may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages, liabilities or actions arise out of or are based upon (i) any untrue statement of any material fact contained in any registration statement under which such securities were registered under the Securities Act, any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereof, or arise out of or are based upon the omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) any violation of United States of America state or federal securities laws but only to the extent, with respect to this subsection (ii), that the Offering Holder suffers losses, damages and liabilities with respect to the Securities such Offering Holder beneficially owns as of the date of such violation including any Securities sold on the day of such violation; (iii) any failure by the Company to fulfill and perform any agreement, covenant or undertaking herein or (iv) any failure or breach of the representations and warranties of the Company set forth in Section 4 to be accurate as of the Closing, and will (to the extent it is lawful for it to do so) promptly reimburse such Offering Holder, its officers, directors and each underwriter of such securities, and each such controlling person or entity for any legal and any other expenses reasonably incurred by such Offering Holder, such underwriter, or such controlling person or entity in connection with investigating or defending any such loss, action, claim, damage, liability or action; PROVIDED, HOWEVER, that the Company will not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises directly out of or is based primarily upon an untrue statement or omission made in said registration statement, said preliminary prospectus or said prospectus, or said amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such Offering Holder or such underwriter specifically for use in the preparation thereof, and PROVIDED FURTHER, HOWEVER, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability or action arises directly out of or is based primarily upon an untrue statement or omission made in any preliminary prospectus or final prospectus if (i) such Offering Holder failed to send or deliver a copy of the final prospectus or prospectus supplement with or prior to the delivery of written confirmation of the sale of the Offering Shares and (ii) the final prospectus or prospectus supplement would have corrected such untrue statement or omission. 5.8 In the event of any registration of any securities under the Securities Act pursuant to this Section 5, each Offering Holder will (to the extent it is lawful to do so), or will furnish the written undertaking of such other person or entity as shall be acceptable to the Company to, indemnify and hold harmless the Company, its officers, directors and any person who controls the Company within the meaning of Section 15 of the Securities Act, against any losses, claims, damages, liabilities, or actions, joint or several, to which the Company, its officers, directors, or such controlling person or entity may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages, liabilities, or actions arise out of or are based upon any untrue statement of any material fact contained in any registration statement under which such securities were registered under the Securities Act, any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereto, or arise out of or are based upon the omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent and only to the extent that any such loss, claim, damage, liability, or action arises out of or is based upon an untrue statement or omission made in said registration statement, said preliminary prospectus or said prospectus or said amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such Offering Holder or any underwriter of such Offering Holder's securities specifically for use in the preparation thereof, and will (to the extent it is lawful to do so) promptly reimburse the Company, its officers, directors and any person who controls the Company within the meaning of Section 15 of the Securities Act in connection with investigating or defending any such loss, action, claim, damage, liability or action; PROVIDED, HOWEVER, that the aggregate amount which any such Offering Holder shall be required to pay pursuant to this Section 5.8 shall be limited to the dollar amount of the net proceeds received by such Offering Holder upon the sale of the Securities pursuant to the registration statement giving rise to such claim. Such indemnity shall remain in full force and
Appears in 1 contract
Transfer Restrictions and Registration Rights. 5.1 Subscriber acknowledges that it is acquiring the Securities for its own account and for the purpose of investment and not with a view to any distribution or resale thereof within the meaning of the Securities Act and any applicable state or other securities laws ("STATE ACTS"). The Subscriber further agrees that it will not sell, assign or transfer the Securities at any time in violation of the Securities Act or State Acts and acknowledges that, in acquiring Restricted Securities (as such term is defined under the Securities Act), it must continue to bear the economic risk of its investment for an indefinite period of time because of the fact that the Securities have not been registered under the Securities Act or State Acts, and further acknowledges that the Securities may not be sold unless subsequently registered under the Securities Act and State Acts or an exemption from such registration is available. The Subscriber further acknowledges that the Company is not assuming any obligation to register the Securities under the Securities Act or State Acts except as expressly set forth herein. The Subscriber also acknowledges that appropriate legends reflecting the status of the Securities under the Securities Act and State Acts may be placed on the certificates representing such Securities at the time of their transfer and delivery to the holder thereof.
5.2 Except as provided hereafter with respect to registration of the Shares and the Warrant Shares, it shall be a condition to any such transfer that the Company shall be furnished with an opinion of counsel from the holder of such Shares and Warrant Shares, reasonably satisfactory to the Company, to the effect that the proposed transfer would be in compliance with the Securities Act and State Acts.
(a) Within ten (10) days after the Closing Date, the Company shall use its best efforts to prepare and file with the SEC on one occasion, a registration statement and such other documents as may be necessary in the opinion of counsel for the Company, and use its best efforts to have such registration statement declared effective as soon as possible after the Closing Date in order to comply with the provisions of the Securities Act so as to permit the registered resale of the Shares and the Warrant Shares for a period of three (3) years following the Closing Date by each and every holder of shares sold in the Offering (the "OFFERING SHARES") who desires to register the resale of their shares. Within five (5) days after the Closing Date, the Company shall give each holder of Offering Shares notice at the address of such holder appearing on the register and transfer records of Company of the Company's intention to register the resale of such Offering Shares. The obligations of the Company to give such notice shall be limited to the Subscriber and any entity which at the time the Offering Shares may have been transferred, which entities, together with the Subscriber and the Placement Agent, are hereafter referred to as "OFFERING HOLDERS."
(b) If the registration statement referred to in Section 5.3(a) above has not been declared effective by the SEC on or before May 14February 22, 2001, the Company shall promptly issue to the Subscriber .07 ADS for every ADS purchased in the Offering. In addition, if the registration statement referred to in Section 5.3(a) is not declared effective by the SEC on or before the last day of each month thereafter, the Company shall promptly, in each respective month (and prorated for partial months), issue to the Subscriber .02 ADS for every ADS purchased in the Offering until the registration statement is declared effective by the SEC (rounded up to the nearest share after aggregating all shares held by such Offering Holder). In the event of an issue of further ADSs pursuant to this Section 5.3(b), the Subscriber shall pay the nominal value of each Ordinary Share represented by each ADS it receives. The foregoing payment shall constitute the sole monetary remedy available to the Subscriber in the event that the Company does not comply with the deadlines set forth in this Section 5.3(b) with respect to the effectiveness of the registration statement referred to therein.
5.4 Notwithstanding the foregoing provisions of this Section 5, the Company may voluntarily suspend the effectiveness of any such registration statement for a limited time, which in no event shall be longer than 60 consecutive or non-consecutive days in any 12-month period, if the Company has been advised in writing by counsel or underwriters to the Company that the offering of any Offering Shares pursuant to the registration statement would materially adversely affect, or would be improper in view of (or improper without disclosure in a prospectus), a proposed financing, a reorganization, recapitalization, merger, consolidation, or similar transaction involving the Company. If any event occurs that would cause the registration statement to contain a material misstatement or omission or not to be effective and usable during the period that such registration statement is required to be effective and usable, the Company shall promptly file an amendment to the registration statement and use its best efforts to cause such amendment to be declared effective as soon as practicable thereafter. The Offering Holders shall furnish to the Company such information regarding their holdings and the proposed manner of distribution thereof as the Company may reasonably request and as shall be required in connection with any such registration statement. Notwithstanding any provision contained herein to the contrary, the Company's obligation to include, or continue to include, Offering Shares in any such registration statement under this Section 5 shall terminate to the extent such shares are eligible for resale under Rule 144(k) promulgated under the Securities Act. If the registration statement registering the Shares and the Warrant Shares for resale is suspended more than 60 consecutive or non-consecutive days in any 12-month period, the Company shall promptly issue to the Subscriber .07 ADS for every ADS purchased in the Offering. In addition, if such suspension or stop order is not lifted on or before the last day of each month thereafter, the Company shall promptly, in each respective month (and prorated for partial months), issue to the Subscriber .02 ADS for every ADS purchased in the Offering until the registration statement is declared effective by the SEC (rounded up to the nearest share after aggregating all shares held by such Offering Holder). In the event of an issue of further ADSs pursuant to this Section 5.4, the Subscriber shall pay the nominal value of each Ordinary Share represented by each ADS it receives.
5.5 If and whenever the Company is required by the provisions of this Agreement to use its best efforts to effect the registration of the Offering Shares under the Securities Act for the account of an Offering Holder, the Company will, as promptly as possible:
(a) prepare and file with the SEC a registration statement with respect to such securities and use its best efforts to cause such registration statement to become and remain effective;
(b) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the requirements of the Securities Act and the rules and regulations promulgated by the SEC thereunder relating to the sale or other disposition of the securities covered by such registration statement;
(c) furnish to each Offering Holder such numbers of copies of a prospectus complying with the requirements of the Securities Act, and such other documents as such Offering Holder may reasonably request in order to facilitate the public sale or other disposition of the Offering Shares owned by such Offering Holder, but such Offering Holder shall not be entitled to use any selling materials other than a prospectus;
(d) use its best efforts to register or qualify the securities covered by such registration statement under the State Acts as any Offering Holder shall reasonably request, and do any and all such other acts and things as may be necessary or advisable to enable such Offering Holder to consummate the public sale or other disposition of the Offering Shares owned by such Offering Holder in such states; PROVIDED, HOWEVER, that the Company shall not be obligated to register or qualify such securities in any jurisdiction in which such registration or qualification would require the Company to qualify as a foreign corporation or file any general consent to service of process where it is not then so qualified or has not theretofore so consented; and
(e) provide a transfer agent and Depositary, which may be a single entity, for the Shares and the Warrant Shares not later than the effective date of the applicable registration statement.
5.6 Except as provided below in this Section 5, the expenses incurred by the Company in connection with action taken by the Company to comply with this Section 5, including, without limitation, all registration and filing fees, printing and delivery expenses, accounting fees, fees and disbursements of counsel to the Company, consultant and expert fees, premiums for liability insurance, if applicable, obtained in connection with a registration statement filed to effect such compliance, if applicable, and all expenses, including counsel fees, for complying with State Acts, shall be paid by the Company. All fees and disbursements of any counsel, experts, or consultants employed by any Offering Holder shall be borne by such Offering Holder. The Company shall not be obligated in any way in connection with any registration pursuant to this Section 5, for any selling commissions or discounts payable to any underwriter or broker for securities to be sold by such Offering Holder. It shall be a condition precedent to the obligation of the Company to take any action pursuant to this Section 5 that the Company shall have received an undertaking satisfactory to it from each Offering Holder to pay all expenses required to be borne by such Offering Holder and to furnish or cause to be furnished to the Company, specifically for use in the preparation of the registration statement and prospectus, written information concerning (i) the securities held by such Offering Holder and any underwriter of such securities, (ii) the intended method of disposition thereof and (iii) any additional information or documentation as the Company shall reasonably request and as may be required by administrators of the Securities Act or State Acts in connection with the action to be taken by the Company hereunder pursuant to such registration.
5.7 The Company will (to the extent it is lawful for it to do so) indemnify and hold harmless each Offering Holder, its officers, directors and each underwriter of such securities, and any person who controls such Offering Holder or underwriter within the meaning of Section 15 of the Securities Act, against all claims, actions, losses, damages, liabilities and expenses, joint or several, to which any of such persons may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages, liabilities or actions arise out of or are based upon (i) any untrue statement of any material fact contained in any registration statement under which such securities were registered under the Securities Act, any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereof, or arise out of or are based upon the omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; , (ii) any violation of United States of America state or federal securities laws but only to the extent, with respect to this subsection (ii), that the Offering Holder suffers losses, damages and liabilities with respect to the Securities such Offering Holder beneficially owns as of the date of such violation including any Securities sold on the day of such violation; (iii) any failure by the Company to fulfill and perform any agreement, covenant or undertaking herein or (iv) any failure or breach of the representations and warranties of the Company set forth in Section 4 to be accurate as of the Closing, and will (to the extent it is lawful for it to do so) promptly reimburse such Offering Holder, its officers, directors and each underwriter of such securities, and each such controlling person or entity for any legal and any other expenses reasonably incurred by such Offering Holder, such underwriter, or such controlling person or entity in connection with investigating or defending any such loss, action, claim, damage, liability or action; PROVIDED, HOWEVER, that the Company will not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises directly out of or is based primarily upon an untrue statement or omission made in said registration statement, said preliminary prospectus or said prospectus, or said amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such Offering Holder or such underwriter specifically for use in the preparation thereof, and PROVIDED FURTHER, HOWEVER, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability or action arises directly out of or is based primarily upon an untrue statement or omission made in any preliminary prospectus or final prospectus if (i) such Offering Holder failed to send or deliver a copy of the final prospectus or prospectus supplement with or prior to the delivery of written confirmation of the sale of the Offering Shares and (ii) the final prospectus or prospectus supplement would have corrected such untrue statement or omission.
5.8 In the event of any registration of any securities under the Securities Act pursuant to this Section 5, each Offering Holder will (to the extent it is lawful to do so), or will furnish the written undertaking of such other person or entity as shall be acceptable to the Company to, indemnify and hold harmless the Company, its officers, directors and any person who controls the Company within the meaning of Section 15 of the Securities Act, against any losses, claims, damages, liabilities, or actions, joint or several, to which the Company, its officers, directors, or such controlling person or entity may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages, liabilities, or actions arise out of or are based upon any untrue statement of any material fact contained in any registration statement under which such securities were registered under the Securities Act, any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereto, or arise out of or are based upon the omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent and only to the extent that any such loss, claim, damage, liability, or action arises out of or is based upon an untrue statement or omission made in said registration statement, said preliminary prospectus or said prospectus or said amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such Offering Holder or any underwriter of such Offering Holder's securities specifically for use in the preparation thereof, and will (to the extent it is lawful to do so) promptly reimburse the Company, its officers, directors and any person who controls the Company within the meaning of Section 15 of the Securities Act in connection with investigating or defending any such loss, action, claim, damage, liability or action; PROVIDED, HOWEVER, that the aggregate amount which any such Offering Holder shall be required to pay pursuant to this Section 5.8 shall be limited to the dollar amount of the net proceeds received by such Offering Holder upon the sale of the Securities pursuant to the registration statement giving rise to such claim. Such indemnity shall remain in full force and force
Appears in 1 contract