Corporation Obligations. (a) The Corporation will use its best efforts to effect the registration of the Registrable Securities in accordance with the terms hereof, and pursuant thereto the Corporation will (but subject to Section 2(d)(ii)): (i) (A) promptly furnish to the Purchasers, copies of all such documents proposed to be filed, which documents will be subject to the review of such Purchasers, and (B) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, to conduct a reasonable review of such documents. The Corporation shall not file the Registration Statement or any such Prospectus of any amendments or supplements thereto to which the holders of a majority of the Registrable Securities shall object in writing within 3 Business Days of their receipt thereof if: (1) such objection relates specifically to any description in the Registration Statement, Prospectus or amendment or supplement thereto of the Purchasers, any Affiliate of any Purchaser (other than the Corporation if the Corporation is an Affiliate of any Purchaser) or the Shares, or (2) the Shares, the resale of which is covered by the Registration Statement, Prospectus, amendment or supplement, represent more than 50% of all shares of Common Stock, the sale and/or resales of which are covered by such Registration Statement, Prospectus, amendment or supplement. (ii) respond promptly to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Purchasers true and complete copies of all correspondence from and to the SEC relating to the Registration Statement. (iii) notify the Purchasers promptly (and, in the case of (A)(1) below, not less than 3 days prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than 2 Business Days following the day (A)(1) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is filed; (2) when the SEC notifies the Corporation whether there will be a “review” of such Registration Statement and whenever the SEC provides comments in writing or orally on such Registration Statement and (3) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (B) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (C) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement covering any or all of the Registrable Securities or the initiation or threatening of any Proceedings for that purpose; (D) if at any time any of the representations and warranties of the Corporation contained in any agreement contemplated hereby cease to be true and correct in all material respects; (E) of the receipt by the Corporation of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation of any Proceeding for such purpose; and (F) of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (iv) if requested by the Required Purchasers, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Corporation reasonably agrees should be included therein and (ii) make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Corporation has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment. (v) promptly deliver to each Purchaser, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request. (vi) (i) furnish to each Purchaser a signed counterpart, addressed to the Purchaser, of an opinion of counsel for the Corporation, dated the effective date of the Registration Statement, and (ii) subject only to the obligation of the Corporation to use its best efforts, furnish to each Purchaser a “comfort” letter signed by the independent public accountants who have certified the Corporation’s financial statements included in the Registration Statement, covering substantially the same matters with respect to the Registration Statement (and the prospectus included therein) and (in the case of the accountants’ letter) with respect to events subsequent to the date of the financial statements, as are customarily covered (at the time of such registration) in opinions of the Corporation’s counsel and in accountants’ letters delivered to the underwriters in underwritten public offerings of securities; (vii) cooperate with the Purchasers to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates, to the extent permitted by applicable federal and state securities laws, shall be free of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Purchaser may request in connection with any sale of Registrable Securities; (viii) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement effective for the Effectiveness Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the distribution of all of the Registrable Securities covered thereby in accordance with the intended method of disposition as set forth in the Registration Statement, Prospectus or Prospectus supplement; (ix) correct any deficiency (in the judgment of either the Corporation or the Holders) between the preliminary prospectus and the final prospectus, and pay any expenses associated with the recirculation of the final prospectus following the correction of such deficiency; (x) use its best efforts to (i) prevent the issuance of any stop order or other suspension of effectiveness or qualification or exemption of qualification and, (ii) if such order is issued, obtain the prompt withdrawal of any such order; (xi) prior to any public offering of Registrable Securities, use reasonable best efforts to register or qualify or cooperate with the Purchasers and their counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions requested by the Purchasers, to keep such registration or qualification effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the distribution in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided, however, that the Corporation shall not be required in connection therewith or as a condition thereto to (i) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3, (ii) subject itself to general taxation in any jurisdiction where it would not otherwise be so subject but for this Section 3, or (iii) file a general consent to service of process in any such jurisdiction; (xii) use its best efforts to cause all Registrable Securities covered by a Registration Statement to be listed on each securities exchange, interdealer quotation system or other market on which similar securities issued by the Corporation are then listed; (xiii) promptly notify the Purchasers, at any time when a Prospectus relating to Registrable Securities is required to be delivered under the Securities Act (including during any period when the Corporation is in compliance with Rule 172), upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (including the Prospectus), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and at the request of any such holder, promptly prepare, file with the SEC pursuant to Rule 172 and furnish to such holder a supplement to or an amendment of such Prospectus or post-effective amendment to such Registration Statement (and have it declared effective as promptly as practicable) as may be necessary so that such Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing; (xiv) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC under the Securities Act and the Exchange Act, including Rule 172, notify the Purchasers promptly if the Corporation no longer satisfies the conditions of Rule 172 and take such other actions as may be reasonably necessary to facilitate the registration of the Registrable Securities hereunder; and make available to its security holders, as soon as reasonably practicable, but not later than the Availability Date (as defined below), an earning statement covering a period of at least 12 months, beginning after the effective date of each Registration Statement, which earning statement shall satisfy the provisions of Section 11(a) of the Securities Act, including Rule 158 promulgated thereunder (for the purpose of this Section 3, “Availability Date” means the 45th day following the end of the fourth fiscal quarter that includes the effective date of such Registration Statement, except that, if such fourth fiscal quarter is the last quarter of the Corporation’s fiscal year, “Availability Date” means the 90th day after the end of such fourth fiscal quarter); (xv) upon written notice from a Purchaser that such Purchaser has a legal obligation to make a filing with the FINRA Corporate Financing Department pursuant to FINRA Rule 5110 with respect to the public offering contemplated by the Registration Statement (an “Issuer Filing”), the Corporation agrees it will effect such filing prior to the later to occur of five Trading Days after receipt of the written notice and one Trading Day after the date that the Registration Statement is first filed with the SEC. The Corporation shall use reasonable best efforts to pursue the Issuer Filing until the FINRA issues a letter confirming that it does not object to the terms of the offering contemplated by the Registration Statement. The Corporation will pay any filing fees and expenses in connection with the Issuer Filing; (xvi) in any underwritten offering, including any Underwritten Take-Down Transaction: (A) If requested by the underwriters, the Corporation shall enter into an underwriting agreement with the underwriters for such offering, such agreement to be reasonably satisfactory in substance and form to the underwriters and the Holders of Registrable Securities participating in such underwritten offering; and (B) cause its officers and employees to participate in, and to otherwise facilitate and cooperate with the preparation of the Registration Statement and prospectus and any amendments or supplements thereto (including participating in meetings, drafting sessions and due diligence sessions) and to prepare for, and participate in “road shows,” and all such other customary selling efforts as the Holders of a majority of the Registrable Securities participating in such offering or the underwriters reasonably request in order to expedite or facilitate such disposition but in each case taking into account the Corporation’s business needs; provided that, notwithstanding anything to the contrary herein, the total number of “road shows” the Corporation shall be required to participate in pursuant to this Agreement shall not exceed two in each case; (b) With a view to making available to the Purchasers 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 Purchasers to sell shares of Common Stock to the public without registration, the Corporation covenants and agrees to: make and keep public information available, as those terms are understood and defined in Rule 144, until such date as all of the Registrable Securities shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Corporation under the Exchange Act; and (iii) furnish to each Purchaser upon request, as long as such Purchaser owns any Registrable Securities, (A) a written statement by the Corporation that it has complied with the reporting requirements of the Exchange Act, and (B) such other information as may be reasonably requested in order to avail such Purchaser of any rule or regulation of the SEC that permits the selling of any such Registrable Securities without registration. (c) With a view to satisfying its obligations under Section 2(a), the Corporation, after the first public offering of its securities registered under the Securities Act, shall use its best efforts to qualify and remain qualified to register securities pursuant to a registration statement and Form S-3 under the Securities Act.

Appears in 4 contracts

Samples: Registration Rights Agreement (Square 1 Financial Inc), Registration Rights Agreement (Square 1 Financial Inc), Registration Rights Agreement (Square 1 Financial Inc)

Corporation Obligations. ~~(a)~~ The Corporation will use its reasonable best efforts to effect the registration of the Registrable Securities in accordance with the terms hereof, and pursuant thereto the Corporation will: (a) use its reasonable best efforts to cause such Registration Statement to become effective and to remain continuously effective for a period (the “Registration Period”) that will ~~(but subject to Section 2(d)(ii)):~~ terminate upon the earlier of (i) ~~(A) promptly furnish to~~ the ~~Purchasers, copies of~~ date on which all such documents proposed to be filed, which documents will be subject to the review of such Purchasers, and (B) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, to conduct a reasonable review of such documents. The Corporation shall not file the Registration Statement or any such Prospectus of any amendments or supplements thereto to which the holders of a majority of the Registrable Securities shall object in writing within 3 Business Days of their receipt thereof if: (1) such objection relates specifically to any description in the Registration Statement, Prospectus or amendment or supplement thereto of the Purchasers, any Affiliate of any Purchaser (other than the Corporation if the Corporation is an Affiliate of any Purchaser) or the Shares, or (2) the Shares, the resale of which is covered by the Registration Statement, Prospectus, amendment or supplement, represent more than 50% of all shares of Common Stock, the sale and/or resales of which are covered by such Registration Statement, Prospectus, amendment or supplement. (ii) respond promptly to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Purchasers true and complete copies of all correspondence from and to the SEC relating to the Registration Statement. (iii) notify the Purchasers promptly (and, in the case of (A)(1) below, not less than 3 days prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than 2 Business Days following the day (A)(1) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is filed; (2) when the SEC notifies the Corporation whether there will be a “review” of such Registration Statement and whenever the SEC provides comments in writing or orally on such Registration Statement and (3) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (B) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (C) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement covering any or all of the Registrable Securities or the initiation or threatening of any Proceedings for that purpose; (D) if at any time any of the representations and warranties of the Corporation contained in any agreement contemplated hereby cease to be true and correct in all material respects; (E) of the receipt by the Corporation of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation of any Proceeding for such purpose; and (F) of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (iv) if requested by the Required Purchasers, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Corporation reasonably agrees should be included therein and (ii) make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Corporation has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment. (v) promptly deliver to each Purchaser, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request. (vi) (i) furnish to each Purchaser a signed counterpart, addressed to the Purchaser, of an opinion of counsel for the Corporation, dated the effective date of the Registration Statementhave been sold, and (ii) ~~subject only~~ the date on which all Registrable Securities may be sold without restriction pursuant to the obligation of the Corporation to use its best efforts, furnish to each Purchaser a “comfort” letter signed by the independent public accountants who have certified the Corporation’s financial statements included in the Registration Statement, covering substantially the same matters with respect to the Registration Statement Rule 144(b)(1) (and the prospectus included therein) and (in the case of the accountants’ letter) with respect to events subsequent to the date of the financial statements, as are customarily covered (at the time of such registration) in opinions of the Corporation’s counsel and in accountants’ letters delivered to the underwriters in underwritten public offerings of securities;no Warrants remain outstanding). (vii) cooperate with the Purchasers to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates, to the extent permitted by applicable federal and state securities laws, shall be free of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Purchaser may request in connection with any sale of Registrable Securities; (viiib) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement effective and permit sales of the Registrable Securities thereunder for the ~~Effectiveness Period~~ period specified in Section 3(a) and to comply with the provisions of the ~~Securities~~ 1933 Act and the ~~Exchange~~ 1934 Act with respect to the distribution of all Registrable Securities; provided that, at a time reasonably prior to the filing of a Registration Statement or Prospectus, or any amendments or supplements thereto, the Corporation will furnish to the Investors copies of all documents proposed to be filed, which documents will be subject to the comments of the Investors; (c) permit counsel designated by the Investors to review and comment on each Registration Statement and Prospectus and all amendments and supplements thereto no fewer than five (5) business days prior to their filing with the SEC and not file any document to which such counsel reasonably objects; (d) to the extent not publicly available through either EXXXX, furnish to the Investors and their counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Corporation, one copy of any Registration Statement and any amendment thereto including all exhibits thereto and any documents incorporated by reference therein, each Prospectus and each amendment or supplement thereto, and each letter written by or on behalf of the Corporation to the SEC or the staff of the SEC, and each item of correspondence from the SEC or the staff of the SEC, in each case relating to such Registration Statement or Prospectus (other than any portion of any thereof which contains information for which the Corporation has sought confidential treatment), and (ii) such number of copies of a Prospectus, including a preliminary prospectus, and all amendments and supplements thereto and such other documents as each Investor may reasonably request in order to facilitate the disposition of the Registrable Securities ~~covered thereby~~ owned by such Investor; (e) if required by any underwriter, or if any Investor is required to be described in ~~accordance with~~ the ~~intended method~~ Registration Statement as an underwriter, the Corporation shall furnish, on the effective date of ~~disposition as set forth in~~ the Registration Statement, ~~Prospectus or Prospectus supplement~~on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement and thereafter from time to time as any underwriter, including any Investor described as such, may reasonably request, (i) an opinion, dated such date, from independent legal counsel representing the Corporation for purposes of such Registration Statement, in form, scope and substance as is customarily given in an underwritten public offering, addressed to the underwriter and any Investor described as such, and (ii) a letter, dated such date, from the Corporation’s independent certified public accountants in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the underwriter and any such Investor described as such; (ix) correct any deficiency (in the judgment of either the Corporation or the Holders) between the preliminary prospectus and the final prospectus, and pay any expenses associated with the recirculation of the final prospectus following the correction of such deficiency; (xf) use ~~its~~ reasonable best efforts to ~~(i)~~ prevent the issuance of any stop order or other suspension of effectiveness ~~or qualification or exemption of qualification and, (ii) if such order is issued, obtain the prompt withdrawal~~ of any ~~such order; (xi) prior to any public offering~~ Registration Statement or the suspension of ~~Registrable Securities, use reasonable best efforts to register or qualify or cooperate with~~ the ~~Purchasers and their counsel in connection with the registration or~~ qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions requested by the Purchasers, to keep such registration or qualification effective during the Effectiveness Period and do any ~~and all other acts or things necessary or advisable to enable the distribution in such jurisdictions~~ of the Registrable Securities ~~covered by the Registration Statement; provided, however, that the Corporation shall not be required in connection therewith or as a condition thereto to (i) qualify to do business~~ for sale in any jurisdiction ~~where it would not otherwise be required~~ and, if such an order or suspension is issued, to qualify but for this Section 3, (ii) subject itself to general taxation in any jurisdiction where it would not otherwise be so subject but for this Section 3, or (iii) file a general consent to service of process in any such jurisdiction; (xii) use its best efforts to cause all Registrable Securities covered by a Registration Statement to be listed on each securities exchange, interdealer quotation system or other market on which similar securities issued by obtain the Corporation are then listed; (xiii) promptly notify the Purchasers, at any time when a Prospectus relating to Registrable Securities is required to be delivered under the Securities Act (including during any period when the Corporation is in compliance with Rule 172), upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (including the Prospectus), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and at the request of any such holder, promptly prepare, file with the SEC pursuant to Rule 172 and furnish to such holder a supplement to or an amendment withdrawal of such ~~Prospectus~~ order or post-effective amendment to such Registration Statement (and have it declared effective as promptly as practicable) as may be necessary so that such Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing; (xiv) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC under the Securities Act and the Exchange Act, including Rule 172, notify the Purchasers promptly if the Corporation no longer satisfies the conditions of Rule 172 and take such other actions as may be reasonably necessary to facilitate the registration of the Registrable Securities hereunder; and make available to its security holders, suspension as soon as reasonably ~~practicable, but not later than the Availability Date (as defined below), an earning statement covering a period of at least 12 months, beginning after the effective date of~~ practicable and to notify each ~~Registration Statement, which earning statement shall satisfy the provisions of Section 11(a)~~ Investor who holds Registrable Securities being sold of the ~~Securities Act, including Rule 158 promulgated thereunder (for~~ issuance of such order and the ~~purpose~~ resolution thereof or its receipt of ~~this Section 3, “Availability Date” means the 45th day following the end~~ written notice of the ~~fourth fiscal quarter that includes the effective date~~ initiation or threat of such Registration Statement, except that, if such fourth fiscal quarter is the last quarter of the Corporation’s fiscal year, “Availability Date” means the 90th day after the end of such fourth fiscal quarter); (xv) upon written notice from a Purchaser that such Purchaser has a legal obligation to make a filing with the FINRA Corporate Financing Department pursuant to FINRA Rule 5110 with respect to the public offering contemplated by the Registration Statement (an “Issuer Filing”), the Corporation agrees it will effect such filing prior to the later to occur of five Trading Days after receipt of the written notice and one Trading Day after the date that the Registration Statement is first filed with the SEC. The Corporation shall use reasonable best efforts to pursue the Issuer Filing until the FINRA issues a letter confirming that it does not object to the terms of the offering contemplated by the Registration Statement. The Corporation will pay any filing fees and expenses in connection with the Issuer Filing; (xvi) in any underwritten offering, including any Underwritten Take-Down Transaction: (A) If requested by the underwriters, the Corporation shall enter into an underwriting agreement with the underwriters proceeding for such offering, such agreement to be reasonably satisfactory in substance and form to the underwriters and the Holders of Registrable Securities participating in such underwritten offering; and (B) cause its officers and employees to participate in, and to otherwise facilitate and cooperate with the preparation of the Registration Statement and prospectus and any amendments or supplements thereto (including participating in meetings, drafting sessions and due diligence sessions) and to prepare for, and participate in “road shows,” and all such other customary selling efforts as the Holders of a majority of the Registrable Securities participating in such offering or the underwriters reasonably request in order to expedite or facilitate such disposition but in each case taking into account the Corporation’s business needs; provided that, notwithstanding anything to the contrary herein, the total number of “road shows” the Corporation shall be required to participate in pursuant to this Agreement shall not exceed two in each casepurpose; (b) With a view to making available to the Purchasers 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 Purchasers to sell shares of Common Stock to the public without registration, the Corporation covenants and agrees to: make and keep public information available, as those terms are understood and defined in Rule 144, until such date as all of the Registrable Securities shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Corporation under the Exchange Act; and (iii) furnish to each Purchaser upon request, as long as such Purchaser owns any Registrable Securities, (A) a written statement by the Corporation that it has complied with the reporting requirements of the Exchange Act, and (B) such other information as may be reasonably requested in order to avail such Purchaser of any rule or regulation of the SEC that permits the selling of any such Registrable Securities without registration. (c) With a view to satisfying its obligations under Section 2(a), the Corporation, after the first public offering of its securities registered under the Securities Act, shall use its best efforts to qualify and remain qualified to register securities pursuant to a registration statement and Form S-3 under the Securities Act.

Appears in 1 contract

Samples: Note Purchase Agreement (Uranerz Energy Corp.)

Corporation Obligations. In connection with the Corporation’s registration obligations hereunder, the Corporation shall: (a) ~~The Corporation will use its best efforts~~ Not less than five (5) Trading Days prior to ~~effect~~ the ~~registration~~ filing of each Registration Statement and not less than two (2) Trading Days prior to the ~~Registrable Securities in accordance with the terms hereof~~filing of any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to be incorporated therein by reference), ~~and pursuant thereto~~ the Corporation ~~will (but subject to Section 2(d)(ii)):~~ shall (i) ~~(A) promptly~~ furnish to ~~the Purchasers,~~ each Holder copies of all such documents proposed to be filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such ~~Purchasers~~Holders, and (Bii) cause its officers and directors, counsel and independent ~~certified~~ registered public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to each Holder, to conduct a reasonable ~~review~~ investigation within the meaning of ~~such documents~~the Securities Act. Notwithstanding the above, the Corporation shall not be obligated to provide the Holders advance copies of any universal shelf registration statement registering securities in addition to those required hereunder, or any Prospectus prepared thereto. The Corporation shall not file ~~the~~ a Registration Statement or any such Prospectus of or any amendments or supplements thereto to which the ~~holders~~ Holders of a majority of the Registrable Securities shall reasonably object in good faith, provided that, the Corporation is notified of such objection in writing ~~within 3 Business~~ no later than three (3) Trading Days after the Holders have been so furnished copies of ~~their receipt thereof if:~~ a Registration Statement or one (1) ~~such objection relates specifically to~~ Trading Day after the Holders have been so furnished copies of any ~~description in the Registration Statement,~~ related Prospectus or ~~amendment~~ amendments or supplement thereto of the Purchasers, any Affiliate of any Purchaser (other than the Corporation if the Corporation is an Affiliate of any Purchaser) or the Shares, or (2) the Shares, the resale of which is covered by the Registration Statement, Prospectus, amendment or supplement, represent more than 50% of all shares of Common Stock, the sale and/or resales of which are covered by such Registration Statement, Prospectus, amendment or supplementsupplements thereto. (i) Prepare and file with the Commission such amendments, including post-effective amendments, to a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iii) respond as promptly as reasonably possible to any comments received from the ~~SEC~~ Commission with respect to ~~the~~ a Registration Statement or any amendment thereto and provide as promptly as ~~possible provide~~ reasonably practicable to the ~~Purchasers~~ Holders of the Registrable Securities true and complete copies of all correspondence from and to the ~~SEC~~ Commission relating to a Registration Statement (provided that the Corporation shall excise any information therein, which would constitute material non-public information regarding the Corporation or any of its Subsidiaries), and (iv) comply in all material respects with the applicable provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by a Registration ~~Statement~~Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such Prospectus as so supplemented. (~~iii~~c) ~~notify~~ If during the ~~Purchasers promptly~~ Effectiveness Period, the number of Registrable Securities at any time exceeds 100% of the number of shares of Common Stock then registered in a Registration Statement, then the Corporation shall file as soon as reasonably practicable, but in any case prior to the applicable Filing Date (~~and~~which date shall be subject to any applicable SEC Guidance or limitation required by the Commission), in an additional Registration Statement covering the ~~case~~ resale by the Holders of ~~(A)(1) below,~~ not less than ~~3 days prior~~ the number of such Registrable Securities. (d) Notify the Holders of Registrable Securities to ~~such filing~~be sold (which notice shall, pursuant to clauses (iii) ~~and~~ through (~~if requested~~ vi) hereof, be accompanied by ~~any such Person~~an instruction to suspend the use of the Prospectus until the requisite changes have been made) ~~confirm such notice in writing no later than 2 Business Days following the day~~ as promptly as reasonably possible (~~A)(1~~i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to ~~the~~ a Registration Statement is has been filed; , (2B) when the ~~SEC~~ Commission notifies the Corporation whether there will be a “review” of such Registration ~~Statement and whenever the SEC provides comments in writing or orally on such Registration Statement~~ Statement, and (3C) with respect to ~~the~~ a Registration Statement or any post-effective amendment, when the same has become effective; , (Bii) of any request by the ~~SEC~~ Commission or any other ~~Federal~~ federal or state governmental authority for amendments or supplements to ~~the~~ a Registration Statement or Prospectus or for additional information; , in each case, after the such Registration Statement has been declared effective, (Ciii) of the issuance by the ~~SEC~~ Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of ~~the~~ a Registration Statement covering any or all of the Registrable Securities or the initiation ~~or threatening~~ of any Proceedings for that purpose; , (~~D) if at any time any of the representations and warranties of the Corporation contained in any agreement contemplated hereby cease to be true and correct in all material respects; (E~~iv) of the receipt by the Corporation of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose~~; and~~ , (Fv) of the occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in ~~the~~ a Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to ~~the~~ a Registration Statement, Prospectus or other documents so that, in the case of ~~the~~ a Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in ~~the~~ light of the circumstances under which they were made, not misleading, and (vi) of the occurrence or existence of any pending corporate development with respect to the Corporation that the Corporation believes may be material and that, in the determination of the Corporation, makes it not in the best interest of the Corporation to allow continued availability of a Registration Statement or Prospectus, provided, however, in no event shall any such notice contain any information which would constitute material, non-public information regarding the Corporation or any of its Subsidiaries. (ive) Use its commercially reasonable efforts to avoid the issuance of, or, if ~~requested by~~ issued, obtain the ~~Required Purchasers,~~ withdrawal of (i) ~~promptly incorporate in~~ any order stopping or suspending the effectiveness of a ~~Prospectus supplement~~ Registration Statement, or ~~post-effective amendment to the Registration Statement such information as the Corporation reasonably agrees should be included therein and~~ (ii) ~~make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Corporation has received notification~~ any suspension of the ~~matters to be incorporated~~ qualification (or exemption from qualification) of any of the Registrable Securities for sale in ~~such Prospectus supplement or post-effective amendment~~any jurisdiction, at the earliest practicable moment. (vf) ~~promptly deliver~~ Furnish to each ~~Purchaser~~Holder, without charge, ~~as many copies~~ at least one conformed copy of each such Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the ~~Prospectus or Prospectuses~~ extent requested by such Person, and all exhibits to the extent requested by such Person (including ~~each form~~ those previously furnished or incorporated by reference) promptly after the filing of ~~prospectus~~such documents with the Commission; provided, that any such item which is available on the XXXXX system (or successor thereto) need not be furnished. Subject to the terms of this Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto as by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such ~~Persons may reasonably request~~Prospectus and any amendment or supplement thereto, except after the giving of any notice pursuant to Section 3(d). (vig) The Corporation shall provide reasonable cooperation with any broker-dealer through which a Holder proposes to resell its Registrable Securities in effecting a filing with the FINRA Corporate Financing Department pursuant to FINRA Rule 5110, as requested by any such Holder. (h) Prior to any resale of Registrable Securities by a Holder, use its commercially reasonable efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from the Registration or qualification) of such Registrable Securities for the resale by the Holder under the securities or Blue Sky laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by each Registration Statement; provided, that, the Corporation shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Corporation to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of process in any such jurisdiction. (i) ~~furnish to each Purchaser~~ If requested by a ~~signed counterpart~~Holder, addressed to the Purchaser, of an opinion of counsel for the Corporation, dated the effective date of the Registration Statement, and (ii) subject only to the obligation of the Corporation to use its best efforts, furnish to each Purchaser a “comfort” letter signed by the independent public accountants who have certified the Corporation’s financial statements included in the Registration Statement, covering substantially the same matters with respect to the Registration Statement (and the prospectus included therein) and (in the case of the accountants’ letter) with respect to events subsequent to the date of the financial statements, as are customarily covered (at the time of such registration) in opinions of the Corporation’s counsel and in accountants’ letters delivered to the underwriters in underwritten public offerings of securities; (vii) cooperate with ~~the Purchasers~~ such Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be ~~sold~~ delivered to a transferee pursuant to a Registration Statement, which ~~certificates~~certificates shall be free, to the extent permitted by ~~applicable federal and state securities laws~~the Exchange Agreement, ~~shall be free~~ of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any ~~Purchaser~~ such Holder may ~~request in connection with any sale of Registrable Securities;~~request. (~~viii~~j) Upon the occurrence of any event contemplated by clause (v) or (vi) of Section 3(A)(d), as promptly as reasonably possible under the circumstances taking into account the Corporation’s good faith assessment of any adverse consequences to the Corporation and its stockholders of the premature disclosure of such event, prepare ~~and file with the SEC such amendments and~~ a supplement or amendment, including a post-effective amendments to the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement effective for the Effectiveness Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the distribution of all of the Registrable Securities covered thereby in accordance with the intended method of disposition as set forth in the Registration Statement, Prospectus or Prospectus supplement; (ix) correct any deficiency (in the judgment of either the Corporation or the Holders) between the preliminary prospectus and the final prospectus, and pay any expenses associated with the recirculation of the final prospectus following the correction of such deficiency; (x) use its best efforts to (i) prevent the issuance of any stop order or other suspension of effectiveness or qualification or exemption of qualification and, (ii) if such order is issued, obtain the prompt withdrawal of any such order; (xi) prior to any public offering of Registrable Securities, use reasonable best efforts to register or qualify or cooperate with the Purchasers and their counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions requested by the Purchasersamendment, to keep such registration or qualification effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the distribution in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided, however, that the Corporation shall not be required in connection therewith or as a condition thereto to (i) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3, (ii) subject itself to general taxation in any jurisdiction where it would not otherwise be so subject but for this Section 3, or (iii) file a general consent to service of process in any such jurisdiction; (xii) use its best efforts to cause all Registrable Securities covered by a Registration Statement ~~to be listed on each securities exchange, interdealer quotation system~~ or other market on which similar securities issued by the Corporation are then listed; (xiii) promptly notify the Purchasers, at any time when a Prospectus relating to Registrable Securities is required to be delivered under the Securities Act (including during any period when the Corporation is in compliance with Rule 172), upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (including the Prospectus), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and at the request of any such holder, promptly prepare, file with the SEC pursuant to Rule 172 and furnish to such holder a supplement to the related Prospectus or ~~an amendment of~~ any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither a Registration Statement nor such Prospectus ~~or post-effective amendment to such Registration Statement (and have it declared effective as promptly as practicable) as may be necessary so that such Prospectus shall not include~~ will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements ~~therein not misleading~~ therein, in light of the circumstances under which they were made, not misleading. If the Corporation notifies the Holders in accordance with clauses (iii) through (vi) of Section 3(A)(d) above to suspend the use of any Prospectus until the requisite changes to such Prospectus have been made, then ~~existing;~~the Holders shall suspend use of such Prospectus. The Corporation will use its commercially reasonable efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. (~~xiv~~k) ~~otherwise use its best efforts to comply~~ Comply with all applicable rules and regulations of the ~~SEC under~~ Commission. (l) The Corporation may require each selling Holder to furnish to the ~~Securities Act~~ Corporation a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and the ~~Exchange Act, including Rule 172, notify~~ natural persons thereof that have voting and dispositive control over the ~~Purchasers promptly if~~ shares. During any periods that the Corporation ~~no longer satisfies the conditions of Rule 172 and take such other actions as may be reasonably necessary~~ is unable to ~~facilitate~~ meet its obligations hereunder with respect to the registration of the Registrable Securities ~~hereunder; and make available~~ solely because any Holder fails to its security holders, as soon as reasonably practicable, but not later than the Availability Date (as defined below), an earning statement covering a period of at least 12 months, beginning after the effective date of each Registration Statement, which earning statement shall satisfy the provisions of Section 11(a) of the Securities Act, including Rule 158 promulgated thereunder (for the purpose of this Section 3, “Availability Date” means the 45th day following the end of the fourth fiscal quarter that includes the effective date of furnish such ~~Registration Statement, except that, if such fourth fiscal quarter is the last quarter~~ information within three Trading Days of the Corporation’s ~~fiscal year~~request, ~~“Availability Date” means the 90th day after the end~~ any liquidated damages that are accruing at such time shall be tolled and any Event that may otherwise occur solely because of such ~~fourth fiscal quarter); (xv) upon written notice from a Purchaser that~~ delay shall be suspended until such ~~Purchaser has a legal obligation to make a filing with the FINRA Corporate Financing Department pursuant to FINRA Rule 5110 with respect~~ information is delivered to the public offering contemplated by the Registration Statement (an “Issuer Filing”), the Corporation agrees it will effect such filing prior to the later to occur of five Trading Days after receipt of the written notice and one Trading Day after the date that the Registration Statement is first filed with the SEC. The Corporation shall use reasonable best efforts to pursue the Issuer Filing until the FINRA issues a letter confirming that it does not object to the terms of the offering contemplated by the Registration Statement. The Corporation will pay any filing fees and expenses in connection with the Issuer Filing; (xvi) in any underwritten offering, including any Underwritten Take-Down Transaction: (A) If requested by the underwriters, the Corporation shall enter into an underwriting agreement with the underwriters for such offering, such agreement to be reasonably satisfactory in substance and form to the underwriters and the Holders of Registrable Securities participating in such underwritten offering; and (B) cause its officers and employees to participate in, and to otherwise facilitate and cooperate with the preparation of the Registration Statement and prospectus and any amendments or supplements thereto (including participating in meetings, drafting sessions and due diligence sessions) and to prepare for, and participate in “road shows,” and all such other customary selling efforts as the Holders of a majority of the Registrable Securities participating in such offering or the underwriters reasonably request in order to expedite or facilitate such disposition but in each case taking into account the Corporation’s business needs; provided that, notwithstanding anything to the contrary herein, the total number of “road shows” the Corporation shall be required to participate in pursuant to this Agreement shall not exceed two in each case; (b) With a view to making available to the Purchasers 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 Purchasers to sell shares of Common Stock to the public without registration, the Corporation covenants and agrees to: make and keep public information available, as those terms are understood and defined in Rule 144, until such date as all of the Registrable Securities shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Corporation under the Exchange Act; and (iii) furnish to each Purchaser upon request, as long as such Purchaser owns any Registrable Securities, (A) a written statement by the Corporation that it has complied with the reporting requirements of the Exchange Act, and (B) such other information as may be reasonably requested in order to avail such Purchaser of any rule or regulation of the SEC that permits the selling of any such Registrable Securities without registration. (c) With a view to satisfying its obligations under Section 2(a), the Corporation, after the first public offering of its securities registered under the Securities Act, shall use its best efforts to qualify and remain qualified to register securities pursuant to a registration statement and Form S-3 under the Securities Act.

Appears in 1 contract

Samples: Share Exchange Agreement (DPW Holdings, Inc.)

Corporation Obligations. In connection with the Corporation’s registration obligations hereunder, the Corporation shall: (a) ~~The Corporation will use its best efforts~~ Not less than five (5) Trading Days prior to ~~effect~~ the ~~registration~~ filing of each Registration Statement and not less than two (2) Trading Days prior to the ~~Registrable Securities in accordance with the terms hereof~~filing of any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to be incorporated therein by reference), ~~and pursuant thereto~~ the Corporation ~~will (but subject to Section 2(d)(ii)):~~ shall (i) ~~(A) promptly~~ furnish to ~~the Purchasers,~~ each Holder copies of all such documents proposed to be filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such ~~Purchasers~~Holders, and (Bii) cause its officers and directors, counsel and independent ~~certified~~ registered public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to each Holder, to conduct a reasonable ~~review~~ investigation within the meaning of ~~such documents~~the Securities Act. Notwithstanding the above, the Corporation shall not be obligated to provide the Holders advance copies of any universal shelf registration statement registering securities in addition to those required hereunder, or any Prospectus prepared thereto. The Corporation shall not file ~~the~~ a Registration Statement or any such Prospectus of or any amendments or supplements thereto to which the ~~holders~~ Holders of a majority of the Registrable Securities shall reasonably object in good faith, provided that, the Corporation is notified of such objection in writing ~~within 3 Business~~ no later than three (3) Trading Days after the Holders have been so furnished copies of ~~their receipt thereof if:~~ a Registration Statement or one (1) ~~such objection relates specifically to~~ Trading Day after the Holders have been so furnished copies of any ~~description in the Registration Statement,~~ related Prospectus or ~~amendment~~ amendments or supplement thereto of the Purchasers, any Affiliate of any Purchaser (other than the Corporation if the Corporation is an Affiliate of any Purchaser) or the Shares, or (2) the Shares, the resale of which is covered by the Registration Statement, Prospectus, amendment or supplement, represent more than 50% of all shares of Common Stock, the sale and/or resales of which are covered by such Registration Statement, Prospectus, amendment or supplementsupplements thereto. (i) Prepare and file with the Commission such amendments, including post-effective amendments, to a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iii) respond as promptly as reasonably possible to any comments received from the ~~SEC~~ Commission with respect to ~~the~~ a Registration Statement or any amendment thereto and provide as promptly as ~~possible provide~~ reasonably practicable to the ~~Purchasers~~ Holders of the Registrable Securities true and complete copies of all correspondence from and to the ~~SEC~~ Commission relating to a Registration Statement (provided that the ~~Registration Statement. (iii) notify~~ Corporation shall excise any information therein, which would constitute material non-public information regarding the ~~Purchasers promptly (and~~Corporation or any of its Subsidiaries), ~~in the case of (A)(1) below, not less than 3 days prior to such filing)~~ and (~~if requested by any such Person~~iv) confirm such notice in writing no later than 2 Business Days following the day (A)(1) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is filed; (2) when the SEC notifies the Corporation whether there will be a “review” of such Registration Statement and whenever the SEC provides comments in writing or orally on such Registration Statement and (3) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (B) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (C) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement covering any or all of the Registrable Securities or the initiation or threatening of any Proceedings for that purpose; (D) if at any time any of the representations and warranties of the Corporation contained in any agreement contemplated hereby cease to be true and correct comply in all material respects; (E) of the receipt by the Corporation of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation of any Proceeding for such purpose; and (F) of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (iv) if requested by the Required Purchasers, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Corporation reasonably agrees should be included therein and (ii) make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Corporation has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment. (v) promptly deliver to each Purchaser, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request. (vi) (i) furnish to each Purchaser a signed counterpart, addressed to the Purchaser, of an opinion of counsel for the Corporation, dated the effective date of the Registration Statement, and (ii) subject only to the obligation of the Corporation to use its best efforts, furnish to each Purchaser a “comfort” letter signed by the independent public accountants who have certified the Corporation’s financial statements included in the Registration Statement, covering substantially the same matters with respect to the Registration Statement (and the prospectus included therein) and (in the case of the accountants’ letter) with respect to events subsequent to the date of the financial statements, as are customarily covered (at the time of such registration) in opinions of the Corporation’s counsel and in accountants’ letters delivered to the underwriters in underwritten public offerings of securities; (vii) cooperate respects with the Purchasers to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates, to the extent permitted by applicable federal and state securities laws, shall be free of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Purchaser may request in connection with any sale of Registrable Securities; (viii) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement effective for the Effectiveness Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the ~~distribution~~ disposition of all of the Registrable Securities covered thereby in accordance with the intended method of disposition as set forth in the Registration Statement, Prospectus or Prospectus supplement; (ix) correct any deficiency (in the judgment of either the Corporation or the Holders) between the preliminary prospectus and the final prospectus, and pay any expenses associated with the recirculation of the final prospectus following the correction of such deficiency; (x) use its best efforts to (i) prevent the issuance of any stop order or other suspension of effectiveness or qualification or exemption of qualification and, (ii) if such order is issued, obtain the prompt withdrawal of any such order; (xi) prior to any public offering of Registrable Securities, use reasonable best efforts to register or qualify or cooperate with the Purchasers and their counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions requested by the Purchasers, to keep such registration or qualification effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the distribution in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided, however, that the Corporation shall not be required in connection therewith or as a condition thereto to (i) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3, (ii) subject itself to general taxation in any jurisdiction where it would not otherwise be so subject but for this Section 3, or (iii) file a general consent to service of process in any such jurisdiction; (xii) use its best efforts to cause all Registrable Securities covered by a Registration Statement ~~to be listed on each securities exchange, interdealer quotation system or other market on which similar securities issued by~~ during the ~~Corporation are then listed;~~ applicable period in accordance (xiii) promptly notify the Purchasers, at any time when a Prospectus relating to Registrable Securities is required to be delivered under the Securities Act (including during any period when the Corporation is in compliance with Rule 172), upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (including the Prospectus), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and at the request of any such holder, promptly prepare, file with the SEC pursuant to Rule 172 and furnish to such holder a supplement to or an amendment of such Prospectus or post-effective amendment to such Registration Statement (and have it declared effective as promptly as practicable) as may be necessary so that such Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing; (xiv) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC under the Securities Act and the Exchange Act, including Rule 172, notify the Purchasers promptly if the Corporation no longer satisfies the conditions of Rule 172 and take such other actions as may be reasonably necessary to facilitate the registration of the Registrable Securities hereunder; and make available to its security holders, as soon as reasonably practicable, but not later than the Availability Date (as defined below), an earning statement covering a period of at least 12 months, beginning after the effective date of each Registration Statement, which earning statement shall satisfy the provisions of Section 11(a) of the Securities Act, including Rule 158 promulgated thereunder (for the purpose of this Section 3, “Availability Date” means the 45th day following the end of the fourth fiscal quarter that includes the effective date of such Registration Statement, except that, if such fourth fiscal quarter is the last quarter of the Corporation’s fiscal year, “Availability Date” means the 90th day after the end of such fourth fiscal quarter); (xv) upon written notice from a Purchaser that such Purchaser has a legal obligation to make a filing with the FINRA Corporate Financing Department pursuant to FINRA Rule 5110 with respect to the public offering contemplated by the Registration Statement (an “Issuer Filing”), the Corporation agrees it will effect such filing prior to the later to occur of five Trading Days after receipt of the written notice and one Trading Day after the date that the Registration Statement is first filed with the SEC. The Corporation shall use reasonable best efforts to pursue the Issuer Filing until the FINRA issues a letter confirming that it does not object subject to the terms of this Agreement) with the ~~offering contemplated~~ intended methods of disposition by the Registration Statement. The Corporation will pay any filing fees and expenses in connection with the Issuer Filing; (xvi) in any underwritten offering, including any Underwritten Take-Down Transaction: (A) If requested by the underwriters, the Corporation shall enter into an underwriting agreement with the underwriters for such offering, such agreement to be reasonably satisfactory in substance and form to the underwriters and the Holders ~~of Registrable Securities participating~~ thereof set forth in such ~~underwritten offering; and (B) cause its officers and employees to participate in, and to otherwise facilitate and cooperate with the preparation of the~~ Registration Statement ~~and prospectus and any amendments~~ as so amended or supplements thereto (including participating in meetings, drafting sessions and due diligence sessions) and to prepare for, and participate in “road shows,” and all such other customary selling efforts as the Holders of a majority of the Registrable Securities participating in such offering or the underwriters reasonably request in order to expedite or facilitate such disposition but in each case taking into account the Corporation’s business needs; provided that, notwithstanding anything to the contrary herein, the total number of “road shows” the Corporation shall be required to participate in pursuant to this Agreement shall not exceed two in each case; (b) With a view to making available to the Purchasers 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 Purchasers to sell shares of Common Stock to the public without registration, the Corporation covenants and agrees to: make and keep public information available, Prospectus as those terms are understood and defined in Rule 144, until such date as all of the Registrable Securities shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Corporation under the Exchange Act; and (iii) furnish to each Purchaser upon request, as long as such Purchaser owns any Registrable Securities, (A) a written statement by the Corporation that it has complied with the reporting requirements of the Exchange Act, and (B) such other information as may be reasonably requested in order to avail such Purchaser of any rule or regulation of the SEC that permits the selling of any such Registrable Securities without registrationso supplemented. (c) With a view to satisfying its obligations under Section 2(a), the Corporation, after the first public offering of its securities registered under the Securities Act, shall use its best efforts to qualify and remain qualified to register securities pursuant to a registration statement and Form S-3 under the Securities Act.

Appears in 1 contract

Samples: Share Exchange Agreement (Avalanche International, Corp.)

Corporation Obligations. ~~(a) The~~ If and whenever the Corporation ~~will~~ is required to use its best efforts to effect the registration of ~~the~~ any Registrable Securities under the Securities Act as provided in ~~accordance with~~ Article II, the Corporation, as expeditiously as possible and subject to the terms ~~hereof~~and conditions of Article II, ~~and pursuant thereto~~ will do the ~~Corporation will (but subject to Section 2(d)(ii)):~~following: (i) Prepare and file with the Commission the appropriate registration statement in the form requested by the required percentage of Holders, in the case of a Requested Registration, to effect such registration and use its diligent efforts to cause such registration statement to become and remain effective for the period set forth in Article III(a)(iii) below; (Aii) ~~promptly furnish~~ Permit any Holder who, in the reasonable judgment of the Corporation’s counsel, might be deemed to be an underwriter or a controlling person of the Corporation, to participate in the preparation of such registration statement (including making available for inspection by any such Person and any attorney, accountant or other agent retained by such Person, all financial and other records, pertinent corporate documents and all other information reasonably requested in connection therewith) and give to the ~~Purchasers~~Holders of Registrable Securities to be sold under such registration statement, the underwriters, if any, and their respective counsel and accountants, advance draft copies of ~~all~~ such ~~documents proposed to be filed~~registration statement, ~~which documents will be subject~~ each prospectus included therein or filed with the Commission at least five (5) business days prior to the ~~review of such Purchasers~~filing thereof with the Commission, and ~~(B) cause~~ any amendments and supplements thereto promptly as they become available, and will give each of them such access to its books and records and such opportunities to discuss the business of the Corporation with its officers and ~~directors, counsel and~~ the independent ~~certified~~ public accountants ~~to respond to such inquiries~~ who have certified its financial statements as shall be necessary, in the opinion of such Holders and such underwriters’ respective counsel, to conduct a reasonable ~~review of such documents. The Corporation shall not file~~ investigation within the ~~Registration Statement or any such Prospectus of any amendments or supplements thereto to which the holders of a majority~~ meaning of the ~~Registrable~~ Securities ~~shall object~~ Act; (iii) Prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in ~~writing within 3 Business Days of their receipt thereof if: (1)~~ connection therewith as may be necessary to keep such ~~objection relates specifically~~ registration statement effective and to ~~any description in~~ comply with the ~~Registration Statement, Prospectus or amendment or supplement thereto~~ provisions of the Purchasers, any Affiliate of any Purchaser (other than the Corporation if the Corporation is an Affiliate of any Purchaser) or the Shares, or (2) the Shares, the resale of which is covered by the Registration Statement, Prospectus, amendment or supplement, represent more than 50% of all shares of Common Stock, the sale and/or resales of which are covered by such Registration Statement, Prospectus, amendment or supplement. (ii) respond promptly to any comments received from the SEC Securities Act with respect to the ~~Registration Statement~~ disposition of all securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement or the expiration of 180 days after such registration statement becomes effective (such period of 180 days to be extended one day for each day or portion thereof during such period that such registration statement shall be subject to any stop order suspending the effectiveness of the registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Registrable Securities included in such registration statement for sale in any jurisdiction); (iv) Furnish to the Holders participating in such registration without charge to the Holders, such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents, as the purchaser or any ~~amendment thereto and as promptly as possible provide the Purchasers true and complete copies~~ Holder of ~~all correspondence from and~~ Registrable Securities to ~~the SEC relating to the Registration Statement.~~be sold under such registration statement may reasonably request; (~~iii~~v) ~~notify the Purchasers promptly (and, in the case of (A)(1) below, not less than 3 days prior~~ Use its best efforts to register or qualify all Registrable Securities covered by such ~~filing) and (if requested by any~~ registration statement under such ~~Person) confirm such notice in writing no later than 2 Business Days following the day (A)(1) when a Prospectus~~ other United States state securities or ~~any Prospectus supplement or post-effective amendment to the Registration Statement is filed; (2) when the SEC notifies the Corporation whether there will be a “review”~~ blue sky laws of such ~~Registration Statement~~ jurisdictions as any Holder of Registrable Securities to be sold under such registration statement shall reasonably request, to keep such registration or qualification in effect for the time period set forth in Article III(a)(iii) hereof, and whenever the SEC provides comments in writing or orally on such Registration Statement and (3) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (B) of any request by the SEC or take any other ~~Federal~~ action that may be reasonably necessary or advisable to enable the Holders who are participating in such registration to sell Registrable Securities in such jurisdictions; (vi) Use its best efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other United States state governmental ~~authority for amendments~~ agencies or ~~supplements~~ authorities as may be necessary to enable the ~~Registration Statement or Prospectus or for additional information;~~ Holders who are participating in such registration to sell Registrable Securities as intended by such registration statement; (Cvii) In the event of the issuance ~~by the SEC~~ of any stop order suspending the effectiveness of the ~~Registration Statement covering any~~ registration statement, or ~~all of the Registrable Securities or the initiation or threatening~~ of any ~~Proceedings for that purpose; (D) if at any time any of~~ order suspending or preventing the ~~representations and warranties of the Corporation contained in any agreement contemplated hereby cease to be true and correct in all material respects; (E) of the receipt by the Corporation~~ use of any ~~notification with respect to~~ related prospectus or suspending the ~~suspension of the qualification or exemption from~~ qualification of any ~~of the~~ Registrable Securities included in such registration statement for sale in any jurisdiction, or the ~~initiation~~ Corporation shall use its best efforts promptly to obtain the withdrawal of ~~any Proceeding for~~ such ~~purpose; and~~ order; (Fviii) Use its best efforts to furnish to the Holders registering Registrable Securities under such registration statement: (1) An opinion, dated the effective date of the ~~occurrence~~ registration statement, of ~~any event that makes any statement made in~~ the ~~Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions~~ independent counsel representing the Corporation for the purposes of such registration, addressed to the ~~Registration Statement~~underwriters, ~~Prospectus~~ if any, and to the Holders making such request, stating that such registration statement has become effective under the Securities Act and that: (A) To the knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or ~~other documents so that~~are pending or contemplated under the Securities Act; (B) The registration statement, the related prospectus, and each amendment or supplement thereto, comply as to form in all material respects with the ~~case~~ requirements of the ~~Registration Statement or~~ Securities Act and the ~~Prospectus~~applicable rules and regulations of the Commission thereunder (except that such counsel need express no opinion as to financial statements and related schedules contained therein); (C) To the knowledge of such counsel, as of the ~~case may be~~effective date, ~~it will not contain~~ neither the registration statement, the prospectus, nor any amendment or supplement thereto (other than the financial statements and related schedules therein), contains any untrue statement of a material fact or ~~omit to state any~~ omits 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.; (ivD) ~~if requested~~ The descriptions in the registration statement or the prospectus, or any amendment or supplement thereto, of the securities to be registered, insofar as such description purports to constitute a summary of the terms of the securities to be registered, and the description of the underwriting, insofar as such description purports to describe the provisions of the laws and documents, which have been provided to counsel, directly pertaining to the underwriting are accurate and fairly present the information required to be shown; and (E) Except as disclosed in the registration statement or other public filing made by the ~~Required Purchasers~~Corporation with the Commission, ~~(i) promptly incorporate in~~ such counsel does not know of any pending legal or governmental proceedings to which the Corporation is a ~~Prospectus supplement~~ party or ~~post-effective amendment~~ of which any property of the Corporation is the subject that, if determined adversely to the ~~Registration Statement such information as~~ Corporation, would individually or in the ~~Corporation reasonably agrees should be included therein and (ii) make all required filings~~ aggregate have a material adverse effect on the then-correct or future consolidated financial position, stockholders’ equity or results of ~~such Prospectus supplement or such post-effective amendment as soon as practicable after the Corporation has received notification~~ operation of the ~~matters~~ Corporation, nor of any contracts or documents or instruments of a character required to be ~~incorporated~~ described in ~~such Prospectus supplement~~ the registration statement or ~~post-effective amendment. (v) promptly deliver to each Purchaser~~prospectus, ~~without charge, as many copies of the Prospectus~~ or ~~Prospectuses (including each form of prospectus) and each~~ any amendment or supplement thereto or to be filed as ~~such Persons may reasonably request. (vi) (i) furnish to each Purchaser a signed counterpart, addressed~~ exhibits to the ~~Purchaser, of an~~ registration statement that are not described and filed as required (such opinion of counsel ~~for~~ shall additionally cover such legal matters with respect to the ~~Corporation~~registration in respect of which such opinion is being given as a majority in interest of Holders participating in such registration may reasonably request and may contain such qualifications and limitations as are customarily included in opinions of such sort); and (2) A letter, dated the effective date of the ~~Registration Statement~~registration statement, from the independent certified public accountants of the Corporation, addressed to the underwriters, if any, and ~~(ii) subject only~~ to the ~~obligation~~ Holders making such request, stating that they are independent certified public accountants within the meaning of the Securities Act and that in the opinion of such accountants, the financial statements and other financial data of the Corporation ~~to use its best efforts, furnish to each Purchaser a “comfort” letter signed by the independent public accountants who have certified the Corporation’s financial statements~~ included in the ~~Registration Statement~~registration statement or the prospectus, ~~covering substantially~~ or any amendment or supplement thereto, comply as to form in all material respects with the ~~same~~ applicable accounting requirements of the Securities Act (such letter from the independent certified public accountants shall additionally cover such other financial matters ~~with respect~~ (including information as to the ~~Registration Statement (and~~ period ending not more than five business days prior to the ~~prospectus included therein) and (in the case~~ date of ~~the accountants’~~ such letter) with respect to ~~events subsequent to~~ the ~~date~~ registration in respect of which such letter is being given as the financial statements, as are customarily covered (at the time of such registration) in opinions of the Corporation’s counsel and in accountants’ letters delivered to the underwriters in underwritten public offerings of securities; (vii) cooperate with the Purchasers to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates, to the extent permitted by applicable federal and state securities laws, shall be free of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Purchaser Holders may request in connection with any sale of Registrable Securities; (viii) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement effective for the Effectiveness Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the distribution of all of the Registrable Securities covered thereby in accordance with the intended method of disposition as set forth in the Registration Statement, Prospectus or Prospectus supplementreasonably request); (ix) ~~correct any deficiency (in~~ Immediately notify the judgment of either the Corporation or the Holders) between the preliminary prospectus and the final prospectus, and pay any expenses associated with the recirculation of the final prospectus following the correction of such deficiency; (x) use its best efforts to (i) prevent the issuance of any stop order or other suspension of effectiveness or qualification or exemption of qualification and, (ii) if such order is issued, obtain the prompt withdrawal of any such order; (xi) prior to any public offering Holders of Registrable ~~Securities, use reasonable best efforts to register or qualify or cooperate with the Purchasers and their counsel~~ Securities included in ~~connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions requested by the Purchasers, to keep~~ such registration or qualification effective during the Effectiveness Period and do any and all other acts or things necessary or advisable to enable the distribution in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided, however, that the Corporation shall not be required in connection therewith or as a condition thereto to (i) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3, (ii) subject itself to general taxation in any jurisdiction where it would not otherwise be so subject but for this Section 3, or (iii) file a general consent to service of process in any such jurisdiction; (xii) use its best efforts to cause all Registrable Securities covered by a Registration Statement to be listed on each securities exchange, interdealer quotation system or other market on which similar securities issued by the Corporation are then listed; (xiii) promptly notify the Purchasers, statement at any time when a ~~Prospectus~~ prospectus relating ~~to Registrable Securities~~ thereto is required to be delivered under the Securities ~~Act (including during any period when the Corporation is in compliance with Rule 172)~~Act, ~~upon discovery that, or upon the happening~~ of its becoming aware of any event as a result of ~~which,~~ which the ~~Registration Statement (including the Prospectus)~~prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances ~~then existing~~under which they were made, and at the request of ~~any such holder,~~ the Holders promptly ~~prepare, file with the SEC pursuant to Rule 172~~ prepare and furnish to ~~such holder~~ the Holders a reasonable number of copies of a supplement to or an amendment of such ~~Prospectus or post-effective amendment to such Registration Statement (and have it declared effective as promptly as practicable)~~ prospectus as may be necessary so ~~that~~ that, as thereafter delivered to the purchasers of such ~~Prospectus~~ securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances ~~then existing~~under which they were made; (~~xiv~~x) ~~otherwise~~ Otherwise use its best efforts to comply with all applicable rules and regulations of the ~~SEC under the Securities Act and the Exchange Act~~Commission, including Rule 172, notify the Purchasers promptly if the Corporation no longer satisfies the conditions of Rule 172 and take such other actions as may be reasonably necessary to facilitate the registration of the Registrable Securities hereunder; and make available to its security holders, as soon as reasonably practicable, ~~but not later than the Availability Date (as defined below),~~ an ~~earning~~ earnings statement covering a the period of at least 12 twelve months, but not more than eighteen months, beginning with the first full calendar month after the effective date of ~~each Registration Statement~~such registration statement, which ~~earning~~ earnings statement shall satisfy the provisions of Section 11(a) of the Securities ~~Act, including~~ Act and Rule 158 ~~promulgated thereunder~~ thereunder; (xi) Provide a transfer agent and registrar for ~~the purpose of this Section 3, “Availability Date” means the 45th day following the end of the fourth fiscal quarter that includes~~ all Registrable Securities covered by such registration statement not later than the effective date of such Registration Statement, except that, if such fourth fiscal quarter is the last quarter of the Corporation’s fiscal year, “Availability Date” means the 90th day after the end of such fourth fiscal quarter); (xv) upon written notice from a Purchaser that such Purchaser has a legal obligation to make a filing with the FINRA Corporate Financing Department pursuant to FINRA Rule 5110 with respect to the public offering contemplated by the Registration Statement (an “Issuer Filing”), the Corporation agrees it will effect such filing prior to the later to occur of five Trading Days after receipt of the written notice and one Trading Day after the date that the Registration Statement is first filed with the SEC. The Corporation shall use reasonable best efforts to pursue the Issuer Filing until the FINRA issues a letter confirming that it does not object to the terms of the offering contemplated by the Registration Statement. The Corporation will pay any filing fees and expenses in connection with the Issuer Filing; (xvi) in any underwritten offering, including any Underwritten Take-Down Transaction: (A) If requested by the underwriters, the Corporation shall enter into an underwriting agreement with the underwriters for such offering, such agreement to be reasonably satisfactory in substance and form to the underwriters and the Holders of Registrable Securities participating in such underwritten offeringregistration statement; and (Bxii) ~~cause~~ Use its ~~officers and employees~~ best efforts to ~~participate in~~list all Registrable Securities covered by such registration statement on any securities exchange on which the same class of securities issued by the Corporation are then listed. or, ~~and to otherwise facilitate and cooperate with the preparation of the Registration Statement and prospectus and any amendments~~ if no such equity securities are then listed, apply for listing or supplements thereto (including participating in meetings, drafting sessions and due diligence sessions) and to prepare for, and participate in “road shows,” and all such other customary selling efforts as the Holders of a majority quotation of the Registrable Securities on an exchange or quotation system selected by a majority in interest of Holders participating in such offering or the underwriters reasonably request in order to expedite or facilitate such disposition but in each case taking into account the Corporation’s business needs; provided that, notwithstanding anything to the contrary herein, the total number of “road shows” the Corporation shall be required to participate in pursuant to this Agreement shall not exceed two in each case; (b) With a view to making available to the Purchasers 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 Purchasers to sell shares of Common Stock to the public without registration, the Corporation covenants and agrees to: make and keep public information available, as those terms are understood and defined in Rule 144, until such date as all of the Registrable Securities shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Corporation under the Exchange Act; and (iii) furnish to each Purchaser upon request, as long as such Purchaser owns any Registrable Securities, (A) a written statement by the Corporation that it has complied with the reporting requirements of the Exchange Act, and (B) such other information as may be reasonably requested in order to avail such Purchaser of any rule or regulation of the SEC that permits the selling of any such Registrable Securities without registration. (c) With a view to satisfying its obligations under Section 2(a), the Corporation, after the first public offering of its securities registered under the Securities Act, shall use its best efforts to qualify and remain qualified to register securities pursuant to a registration statement and Form S-3 under the Securities Act.

Appears in 1 contract

Samples: Registration and Voting Rights Agreement (aTYR PHARMA INC)

Common use of Corporation Obligations Clause in Contracts