Delay in Filing or Effectiveness of Registration Statement. (a) The Company shall use its best efforts to ensure that a registration statement (the "Registration Statement") is filed on or before the Filing Date. The Registration Statement will include for resale by the Holders in accordance with the plan of distribution set forth therein the Common Stock included within the units and the Common Stock underlying the Warrants (the "Registrable Securities"), but not the Warrants themselves. In the event the Registration Statement covering this offering is not filed on or before the Filing Date, the Company shall pay the Investor, as liquidated damages, 1% of the purchase price of the Units for every 30 calendar day period that the Registration Statement is not filed. Any liquidated damages shall be paid in cash or freely trading common stock at the Company's option, and such damages shall continue until the obligation is fulfilled, subject to a maximum of twenty-four (24) months from the Closing Date. If paid in freely trading Common Stock the pricing for the shares shall be based on the 5-day average closing bid price for the Common Stock for the 3 days prior to the date the shares are delivered to the Investor. Notwithstanding the foregoing, the amounts payable by the Company pursuant to this Section shall not be payable to the extent any delay in the filing of the Registration Statement occurs because of an act of, or a failure to act or to act timely by the Investor. The damages set forth in this Section shall continue until the obligation is fulfilled and shall be paid within three (3) business days after each thirty (30) day period, or portion thereof, until the Registration Statement is filed. Failure of the Company to make payment within said three (3) business days shall be considered a default. The Company acknowledges that its failure to have the Registration Statement filed within said forty-five (45) calendar day period will cause the Investor to suffer damages in an amount that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to include in this Agreement a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision set forth in this section represents the parties' good faith effort to quantify such damages and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. The payment of liquidated damages shall not relieve the Company from its obligations to register the Common Stock and deliver the Common Stock pursuant to the terms of this Agreement. (b) The Company shall use its best efforts to cause such Registration Statement to become effective on or before the Effective Date. The Company represents and warrants that it shall cause the Registration Statement relating to the Registrable Securities to become effective no later than three (3) business days after notice from the SEC that the Registration Statement may be declared effective. In the event the Registration Statement is not declared effective within one hundred (100) calendar days following the Closing Date (unless the delay was caused by the failure of Investors, who have invested more than 50% of the amount of gross funds raised on the Closing Date, to provide the Company with information regarding such Investors necessary to be included therein or to agree to a customary cross indemnification agreement), the Company shall pay the non-defaulting Investors, as liquidated damages, 1% of the purchase price of the Units for every 30 calendar day period, or portion thereof, that the registration statement is not declared effective. Any liquidated damages shall be paid in cash or freely trading common stock at the Company's option, and such damages shall continue until the obligation is fulfilled, subject to a maximum of twenty-four (24) months from the Closing Date. If the Registration Statement covering the Registrable Securities required to be filed by the Company is declared effective, but after the effective date the Investor's right to sell is suspended, then the Company shall pay the Investor the sum of one percent (1%) of the purchase price paid by the Investor for the Units pursuant to this Agreement for each thirty (30) calendar day period, pro rata, following the suspension until such suspension ceases. If paid in freely trading Common Stock the pricing for the shares shall be based on the 5-day average closing bid price for the Common Stock for the 3 days prior to the date the shares are delivered to the Investor. Notwithstanding the foregoing, the amounts payable by the Company pursuant to this Section shall not be payable to the extent any delay in the effectiveness of the Registration Statement occurs because of an act of, or a failure to act or to act timely by the Investor. The damages set forth in this Section shall continue until the obligation is fulfilled or a maximum of twenty-four (24) months and shall be paid within three (3) business days after each thirty (30) day period, or portion thereof, until the Registration Statement is declared effective. Failure of the Company to make payment within said three (3) business days shall be considered a default. The Company acknowledges that its failure to have the Registration Statement filed within said one hundred (100) calendar day period or to permit the suspension of the effectiveness of the Registration Statement, will cause the Investor to suffer damages in an amount that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to include in this Agreement a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision set forth in this section represents the parties' good faith effort to quantify such damages and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. The payment of liquidated damages shall not relieve the Company from its obligations to register the Common Stock and deliver the Common Stock pursuant to the terms of this Agreement. The Company shall respond to all SEC comments promptly, and will keep Charleston Capital Corporation or its counsel advised with respect to the SEC's review of the Registration Statement. (c) The Company agrees not to include any other securities, other than the Common Stock underlying the units, in this Registration Statement without Investor's prior written consent. Furthermore, the Company agrees that it will not file, without the consent of a majority of the Invesotrs, any other Registration Statement for other securities, for a period of 0ne hundred eighty (180) calendar days after the Registration Statement for the Registrable Securities is declared effective and remains effective for ninety (90) calendar days, unless it is for additional financing being made by the Investor in this Offering. (d) Nothing contained in this Agreement shall be deemed to establish or require the payment of interest to the Investor at a rate in excess of the maximum rate permitted by governing law. In the event that the rate of interest required to be paid exceeds the maximum rate permitted by governing law, the rate of interest required to be paid thereunder shall be automatically reduced to the maximum rate permitted under the governing law and such excess shall be returned with reasonable promptness by the Investor to the Company. (e) The Company shall bear registration expenses of the Registration Statement and its counsel shall prepare and file the Registration Statement. Charleston Capital Corporation and any other person for whom Registrable Securities are included in the Registration Statement will bear their own expenses. Each such person will also provide the Company with information regarding "Selling Securityholders" and "Plan of Distribution" and other information required to be included about them, their stock and Warrant ownership, and otherwise that is necessary to be included in the Registration Statement. Charleston Capital Corporation understands that it and persons associated with it will likely be considered to be underwriters by the SEC and the SEC will likely require this disclosure in the Registration Statement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Nanopierce Technologies Inc)
Delay in Filing or Effectiveness of Registration Statement. (a) The If (i) the initial Registration Statement is not filed by the Company shall use its best efforts with the SEC on or prior to ensure that a registration statement fifty five (55) days after the Closing (the "“Mandatory Registration Statement"Date”), (ii) such Registration Statement is not effective on the Mandatory Registration Effective Date, (iii) any Subsequent Registration Statement is not filed by the Mandatory Subsequent Registration Filing Date, or (iv) any Subsequent Registration Statement is not effective on the Mandatory Subsequent Registration Effective Date (each such event a “Registration Failure”), then for each day (w) following the Mandatory Registration Date, (x) following each Mandatory Subsequent Registration Filing Date, (y) following the Mandatory Registration Effective Date, or (z) following each Mandatory Subsequent Registration Effective Date, until but excluding the date the Registration Statement or Subsequent Registration Statement is filed on or before becomes effective, as applicable, the Filing Date. The Company shall, for each such day, pay the Holder with respect to any such failure, as liquidated damages and not as a penalty, an amount equal to 0.0333% of the sum of (i) the purchase amount paid by such Holder (or if such Holder was not an Investor, by the Investor from which the Holder directly or indirectly acquired the Registrable Shares) for its Registrable Shares pursuant to the Unit Subscription Agreement (the “Subscription Payment”) and (ii) amount paid for Underlying Securities held by such Holder (the “Warrant Payment”); and for any such day, such payment shall be made no later than the first business day of the calendar month next succeeding the month in which such day occurs; provided however, that liquidated damages arising from a Registration Failure shall accrue or be payable by the Company only to the extent of the number of Registrable Shares affected by such Registration Failure.
(b) If the Holder shall be prohibited from selling Shares under the Registration Statement will include as a result of a Suspension of more than thirty (30) days or Suspensions on more than two (2) occasions of not more than thirty (30) days each in any 12-month period, then for resale by each day on which a Suspension is in effect that exceeds the Holders in accordance with the plan of distribution set forth therein the Common Stock included within the units and the Common Stock underlying the Warrants (the "Registrable Securities")maximum allowed period for a Suspension or Suspensions, but not the Warrants themselves. In the event the Registration Statement covering this offering including any day on which a Suspension is not filed on or before the Filing Datelifted, the Company shall pay the InvestorHolders, as liquidated damagesdamages and not as a penalty, 1an amount equal to 0.0333% of the purchase price of paid by such Holder (or if such Holder was not an Investor, by the Units Investor from which the Holder directly or indirectly acquired the Registrable Shares) for every 30 calendar day period that its Registrable Shares pursuant to the Registration Statement is not filed. Any liquidated damages shall be paid in cash or freely trading common stock at the Company's optionUnit Subscription Agreement for each such day, and such damages shall continue until the obligation is fulfilled, subject to a maximum of twenty-four (24) months from the Closing Date. If paid in freely trading Common Stock the pricing for the shares payment shall be based made no later than the first business day of the calendar month next succeeding the month in which such day occurs. For purposes of this Section 7, a Suspension shall be deemed lifted on the 5-day average closing bid price for date that notice that the Common Stock for the 3 days prior to the date the shares are Suspension has been lifted is delivered to the Investor. Holder pursuant to Section 10(b) of this Agreement.
(c) Notwithstanding the foregoingforegoing provisions, the amounts payable by in no event shall the Company be obligated to pay such liquidated damages to more than one Holder in respect of the same Registrable Shares for the same period of time. Any payments made pursuant to this Section 7 shall not constitute the Holder’s exclusive remedy for such events.
(d) Payments under this Section 7 shall be payable made to the extent any delay Holder in cash, provided that the filing Company shall have the option, in its sole discretion, to pay the liquidated damages amounts accruing after the first three months (in each instance in which liquidated damages may occur) with additional Shares, with the price of each such additional Share to be deemed equal to the average closing price per share of the Registration Statement occurs because of an act of, or a failure to act or to act timely by Company’s Common Stock as quoted on the Investor. The damages set forth in this Section shall continue until the obligation is fulfilled and shall be paid within three (3) OTCBB for each such 30 business days after each thirty (30) day period, or portion thereof, until . In no event shall payment pursuant to this Section exceed 20% in the Registration Statement aggregate of (i) the Subscription Payment and (ii) the Warrant Payment. These payments will be prorated on a daily basis during the 30-business day period and will be paid to each Holder within ten business days following the end of each 30-business day period as to which payment is filed. Failure of due hereunder provided that the respective Holder delivered to the Company to make payment within said three (3) at least two business days shall be considered a defaultprior thereto information with respect to the number of Shares, Warrants and Underlying Securities not previously sold by such Holder (together with reasonable supporting documentation). The Company acknowledges that its Holders may make a claim for additional damages as a remedy for the Company’s failure to have comply with the Registration Statement filed within said forty-five (45) calendar day period will cause the Investor to suffer damages in an amount that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to include in this Agreement a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision timelines set forth in this section represents Section, but acknowledgement of such right in this Agreement shall not constitute an admission by the parties' good faith effort to quantify Company that any such damages and, as such, agree that exist or may exist. Nothing contained in the form and amount preceding sentence shall be read to limit the ability of such liquidated damages are reasonable and will not constitute a penalty. The payment of liquidated damages shall not relieve the Company from its obligations Holders to register the Common Stock and deliver the Common Stock pursuant to the terms seek specific performance of this Agreement.
(b) The Company shall use its best efforts to cause such Registration Statement to become effective on or before the Effective Date. The Company represents and warrants that it shall cause the Registration Statement relating to the Registrable Securities to become effective no later than three (3) business days after notice from the SEC that the Registration Statement may be declared effective. In the event the Registration Statement is not declared effective within one hundred (100) calendar days following the Closing Date (unless the delay was caused by the failure of Investors, who have invested more than 50% of the amount of gross funds raised on the Closing Date, to provide the Company with information regarding such Investors necessary to be included therein or to agree to a customary cross indemnification agreement), the Company shall pay the non-defaulting Investors, as liquidated damages, 1% of the purchase price of the Units for every 30 calendar day period, or portion thereof, that the registration statement is not declared effective. Any liquidated damages shall be paid in cash or freely trading common stock at the Company's option, and such damages shall continue until the obligation is fulfilled, subject to a maximum of twenty-four (24) months from the Closing Date. If the Registration Statement covering the Registrable Securities required to be filed by the Company is declared effective, but after the effective date the Investor's right to sell is suspended, then the Company shall pay the Investor the sum of one percent (1%) of the purchase price paid by the Investor for the Units pursuant to this Agreement for each thirty (30) calendar day period, pro rata, following the suspension until such suspension ceases. If paid in freely trading Common Stock the pricing for the shares shall be based on the 5-day average closing bid price for the Common Stock for the 3 days prior to the date the shares are delivered to the Investor. Notwithstanding the foregoing, the amounts payable by the Company pursuant to this Section shall not be payable to the extent any delay in the effectiveness of the Registration Statement occurs because of an act of, or a failure to act or to act timely by the Investor. The damages set forth in this Section shall continue until the obligation is fulfilled or a maximum of twenty-four (24) months and shall be paid within three (3) business days after each thirty (30) day period, or portion thereof, until the Registration Statement is declared effective. Failure of the Company to make payment within said three (3) business days shall be considered a default. The Company acknowledges that its failure to have the Registration Statement filed within said one hundred (100) calendar day period or to permit the suspension of the effectiveness of the Registration Statement, will cause the Investor to suffer damages in an amount that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to include in this Agreement a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision set forth in this section represents the parties' good faith effort to quantify such damages and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. The payment of liquidated damages shall not relieve the Company from its obligations to register the Common Stock and deliver the Common Stock pursuant to the terms of this Agreement. The Company shall respond to all SEC comments promptly, and will keep Charleston Capital Corporation or its counsel advised with respect to the SEC's review of the Registration Statement.
(c) The Company agrees not to include any other securities, other than the Common Stock underlying the units, in this Registration Statement without Investor's prior written consent. Furthermore, the Company agrees that it will not file, without the consent of a majority of the Invesotrs, any other Registration Statement for other securities, for a period of 0ne hundred eighty (180) calendar days after the Registration Statement for the Registrable Securities is declared effective and remains effective for ninety (90) calendar days, unless it is for additional financing being made by the Investor in this Offering.
(d) Nothing contained in this Agreement shall be deemed to establish or require the payment of interest to the Investor at a rate in excess of the maximum rate permitted by governing law. In the event that the rate of interest required to be paid exceeds the maximum rate permitted by governing law, the rate of interest required to be paid thereunder shall be automatically reduced to the maximum rate permitted under the governing law and such excess shall be returned with reasonable promptness by the Investor to the Company.
(e) The Company shall bear registration expenses of the Registration Statement and its counsel shall prepare and file the Registration Statement. Charleston Capital Corporation and any other person for whom Registrable Securities are included in the Registration Statement will bear their own expenses. Each such person will also provide the Company with information regarding "Selling Securityholders" and "Plan of Distribution" and other information required to be included about them, their stock and Warrant ownership, and otherwise that is necessary to be included in the Registration Statement. Charleston Capital Corporation understands that it and persons associated with it will likely be considered to be underwriters by the SEC and the SEC will likely require this disclosure in the Registration Statement.
Appears in 1 contract
Samples: Investor Rights Agreement (Novint Technologies Inc)
Delay in Filing or Effectiveness of Registration Statement. (a) The Company shall use its best efforts to ensure that a registration statement (If the "Registration Statement") is filed on or before the Filing Date. The Registration Statement will include for resale by the Holders in accordance with the plan of distribution set forth therein the Common Stock included within the units and the Common Stock underlying the Warrants (the "Registrable Securities"), but not the Warrants themselves. In the event the Registration Statement covering this offering is not filed on or before the Filing Date, the Company shall pay the Investor, as liquidated damages, 1% of the purchase price of the Units for every 30 calendar day period that the Resale Registration Statement is not filed. Any liquidated damages shall be paid in cash filed by the Company with the Commission on or freely trading common stock at the Company's option, and such damages shall continue until the obligation is fulfilled, subject to a maximum of twenty-four (24) months from the Closing Date. If paid in freely trading Common Stock the pricing for the shares shall be based on the 5-day average closing bid price for the Common Stock for the 3 days prior to the Filing Deadline, then for each day following the Filing Deadline until but excluding the date the shares are delivered to the Investor. Notwithstanding the foregoing, the amounts payable by the Company pursuant to this Section shall not be payable to the extent any delay in the filing of the Resale Registration Statement occurs because of an act ofis filed or, or a failure to act or to act timely by the Investor. The damages set forth in this Section shall continue until the obligation is fulfilled and shall be paid within three (3) business days after each thirty (30) day period, or portion thereofif earlier, until the Registration Statement is filed. Failure of date the Company to make payment within said three (3) business days shall Shares and the Warrant Shares purchased hereunder may be considered a default. The Company acknowledges that its failure to have the Registration Statement filed within said forty-five (45) calendar day period will cause the Investor to suffer damages in an amount that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to include in this Agreement a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision set forth in this section represents the parties' good faith effort to quantify such damages and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. The payment of liquidated damages shall not relieve the Company from its obligations to register the Common Stock and deliver the Common Stock sold pursuant to Rule 144 under the terms of this Agreement.
(b) The Company shall use its best efforts to cause such Registration Statement to become effective on or before the Effective Date. The Company represents and warrants that it shall cause the Registration Statement relating Securities Act without any restriction as to the Registrable Securities number of securities as of a particular date that can then be immediately sold and without the requirement to become effective no later than three be in compliance with Rule 144(c)(1) (3) business days after notice from the SEC that “Applicable Rule 144 Full Liquidity Date”), or if the Registration Statement may be declared effective. In the event the Resale Registration Statement is not declared effective within one hundred (100) calendar days following by the Closing Date Commission by the Effective Deadline (unless the delay was caused Commission seeks to impose, or notifies the Company that the Commission is considering, a limitation in the number of shares of Common Stock that the Purchaser and the Other Purchasers may include in the Resale Registration Statement, in which case the provisions of this Section 4.2(h) shall not be applicable if the Resale Registration Statement is not declared effective by the failure of InvestorsCommission by the Effective Deadline), who have invested more than 50% of then for each day following the amount of gross funds raised on Effective Deadline until but excluding the Closing date the Commission declares the Resale Registration Statement effective or, if earlier, until the Applicable Rule 144 Full Liquidity Date, to provide the Company with information regarding such Investors necessary to be included therein or to agree to a customary cross indemnification agreement), the Company shall shall, for each such day, pay the non-defaulting InvestorsPurchaser with respect to any such failure, as liquidated damagesdamages and not as a penalty, 1an amount per 30-day period equal to 1.0% of the purchase price of the Units for every 30 calendar day period, or portion thereof, that the registration statement is not declared effective. Any liquidated damages shall be paid in cash or freely trading common stock at the Company's option, and such damages shall continue until the obligation is fulfilled, subject to a maximum of twenty-four (24) months from the Closing Date. If the Registration Statement covering the Registrable Securities required to be filed by the Company is declared effective, but after the effective date the Investor's right to sell is suspended, then the Company shall pay the Investor the sum of one percent (1%) of the purchase price paid by the Investor Purchaser for its Securities pursuant to this Agreement; and for any such 30-day period, such payment shall be made no later than three business days following such 30-day period. If the Units Purchaser shall be prohibited from selling Shares or Warrant Shares under the Resale Registration Statement as a result of a Suspension of more than thirty (30) days or Suspensions on more than two (2) occasions of not more than thirty (30) days each in any 12-month period, then for each day prior to the Applicable Rule 144 Full Liquidity Date on which a Suspension is in effect that exceeds the maximum allowed period for a Suspension or Suspensions, but not including any day on which a Suspension is lifted, the Company shall pay the Purchaser, as liquidated damages and not as a penalty, an amount per 30-day period equal to 1.0% of the purchase price paid by the Purchaser for its Shares or Warrant Shares, as applicable, pursuant to this Agreement for each thirty (such 30) calendar -day period, pro rata, following the suspension until and such suspension ceases. If paid in freely trading Common Stock the pricing for the shares payment shall be based made no later than the first business day of the calendar month next succeeding the month in which such day occurs. For purposes of this Section 4.2(h), a Suspension shall be deemed lifted on the 5-day average closing bid price for date that notice that the Common Stock for the 3 days prior to the date the shares are Suspension has been lifted is delivered to the InvestorPurchaser pursuant to Section 3.2(k) of this Agreement. Notwithstanding the foregoing, the amounts payable by the Company Any payments made pursuant to this Section 4.2(h) shall not constitute the Purchaser’s exclusive remedy for such events; provided, however, that any payments made by the Purchaser pursuant to this Section 4.2(h) shall reduce the amount of any damages that the Purchaser may be payable entitled to as a remedy for such events. Notwithstanding the extent foregoing provisions, in no event shall the Company be obligated to pay any delay in liquidated damages pursuant to this Section 4.2(h)(i) with respect to any Shares or Warrant Shares for any period of time if the effectiveness Company is obligated to pay to any Other Purchaser liquidated damages pursuant to Section 4.2(h) of the Registration Statement occurs because of an act of, or a failure to act or to act timely Agreement executed by the Investor. The damages set forth in this Section shall continue until the obligation is fulfilled or a maximum of twenty-four (24) months and shall be paid within three (3) business days after each thirty (30) day period, or portion thereof, until the Registration Statement is declared effective. Failure of the Company to make payment within said three (3) business days shall be considered a default. The Company acknowledges that its failure to have the Registration Statement filed within said one hundred (100) calendar day period or to permit the suspension of the effectiveness of the Registration Statement, will cause the Investor to suffer damages in an amount that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to include in this Agreement a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision set forth in this section represents the parties' good faith effort to quantify such damages and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. The payment of liquidated damages shall not relieve the Company from its obligations to register the Common Stock and deliver the Common Stock pursuant to the terms of this Agreement. The Company shall respond to all SEC comments promptly, and will keep Charleston Capital Corporation or its counsel advised Other Purchaser with respect to the SEC's review exact same Shares or Warrant Shares for the same period of time or (ii) in an aggregate amount that exceeds 10% of the Registration Statement.
(c) The Company agrees not to include any other securities, other than purchase price paid by the Common Stock underlying the units, in this Registration Statement without Investor's prior written consent. Furthermore, the Company agrees that it will not file, without the consent of a majority of the Invesotrs, any other Registration Statement for other securities, for a period of 0ne hundred eighty (180) calendar days after the Registration Statement Purchaser for the Registrable Securities is declared effective Shares and remains effective for ninety (90) calendar days, unless it is for additional financing being made by the Investor in Warrants pursuant to this Offering.
(d) Nothing contained in this Agreement Agreement. Such payments shall be deemed to establish or require the payment of interest made to the Investor at a rate Purchasers in excess of the maximum rate permitted by governing law. In the event that the rate of interest required to be paid exceeds the maximum rate permitted by governing law, the rate of interest required to be paid thereunder shall be automatically reduced to the maximum rate permitted under the governing law and such excess shall be returned with reasonable promptness by the Investor to the Companycash.
(e) The Company shall bear registration expenses of the Registration Statement and its counsel shall prepare and file the Registration Statement. Charleston Capital Corporation and any other person for whom Registrable Securities are included in the Registration Statement will bear their own expenses. Each such person will also provide the Company with information regarding "Selling Securityholders" and "Plan of Distribution" and other information required to be included about them, their stock and Warrant ownership, and otherwise that is necessary to be included in the Registration Statement. Charleston Capital Corporation understands that it and persons associated with it will likely be considered to be underwriters by the SEC and the SEC will likely require this disclosure in the Registration Statement.
Appears in 1 contract
Delay in Filing or Effectiveness of Registration Statement. (a) The Company shall use its best efforts to ensure that a registration statement If (i) the "Registration Statement") is filed on or before the Filing Date. The Initial Registration Statement will include for resale by the Holders in accordance with the plan of distribution set forth therein the Common Stock included within the units and the Common Stock underlying the Warrants (the "Registrable Securities"), but not the Warrants themselves. In the event the Registration Statement covering this offering is not filed by the Company with the SEC on or before prior to the Filing DateDeadline, then for each day following the Filing Deadline, until but excluding the date the Initial Registration Statement is filed, the Company shall pay the InvestorNew Investors with respect to any such failure, as liquidated damagesdamages and not as a penalty, 1an amount per 30-day period equal to 1.0% of the purchase price of the Units paid by such New Investors for every 30 calendar day period that the Registration Statement is not filed. Any liquidated damages shall be paid in cash or freely trading common stock at the Company's option, and such damages shall continue until the obligation is fulfilled, subject to a maximum of twenty-four (24) months from the Closing Date. If paid in freely trading Common Stock the pricing for the shares shall be based on the 5-day average closing bid price for the Common Stock for the 3 days prior to the date the shares are delivered to the Investor. Notwithstanding the foregoing, the amounts payable by the Company its Shares pursuant to this Section shall not be payable to Agreement (on a daily basis over such period) (the extent any delay in "FILING LIQUIDATED DAMAGES") or (ii) if the filing of the Registration Statement occurs because of an act of, or a failure to act or to act timely by the Investor. The damages set forth in this Section shall continue until the obligation is fulfilled and shall be paid within three (3) business days after each thirty (30) day period, or portion thereof, until the Registration Statement is filed. Failure of the Company to make payment within said three (3) business days shall be considered a default. The Company acknowledges that its failure to have the Registration Statement filed within said forty-five (45) calendar day period will cause the Investor to suffer damages in an amount that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to include in this Agreement a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision set forth in this section represents the parties' good faith effort to quantify such damages and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. The payment of liquidated damages shall not relieve the Company from its obligations to register the Common Stock and deliver the Common Stock pursuant to the terms of this Agreement.
(b) The Company shall use its best efforts to cause such Registration Statement to become effective on or before the Effective Date. The Company represents and warrants that it shall cause the Registration Statement relating to the Registrable Securities to become effective no later than three (3) business days after notice from the SEC that the Registration Statement may be declared effective. In the event the Initial Registration Statement is not declared effective within one hundred (100) calendar days by the SEC by the Effective Deadline, then for each day following the Closing Date (unless Effective Deadline, until but excluding the delay was caused by date that is the failure of Investors, who have invested more than 50% earlier of the amount of gross funds raised on date the Closing Date, to provide SEC declares the Company with information regarding such Investors necessary to be included therein Initial Registration Statement effective or to agree to a customary cross indemnification agreement)the 30th day after the Effective Deadline, the Company shall pay the non-defaulting InvestorsNew Investors with respect to any such failure, as liquidated damagesdamages and not as a penalty, 1an amount for such period equal to 0.50% of the purchase price of the Units for every 30 calendar day period, or portion thereof, that the registration statement is not declared effective. Any liquidated damages shall be paid in cash or freely trading common stock at the Company's option, and such damages shall continue until the obligation is fulfilled, subject to a maximum of twenty-four (24) months from the Closing Date. If the Registration Statement covering the Registrable Securities required to be filed by the Company is declared effective, but after the effective date the Investor's right to sell is suspended, then the Company shall pay the Investor the sum of one percent (1%) of the purchase price paid by the Investor such New Investors for the Units its Shares pursuant to this Agreement (pro rata) (the "150 DAY LIQUIDATED DAMAGES") or (iii) if the Initial Registration Statement is not declared effective by the SEC by the 180 Day Effective Deadline, then for each thirty (30) calendar day period, pro rata, following the suspension 180 Day Effective Deadline, until such suspension ceases. If paid in freely trading Common Stock the pricing for the shares shall be based on the 5-day average closing bid price for the Common Stock for the 3 days prior to but excluding the date the shares are delivered SEC declares the Initial Registration Statement effective, the Company shall pay the New Investors with respect to any such failure, as liquidated damages and not as a penalty, an amount per 30-day period equal to 1.0% of the Investorpurchase price paid by such New Investors for its Shares pursuant to this Agreement (pro rata on a 30 day basis) (the "180 Day LIQUIDATED DAMAGES," and together with the Filing Liquidated Damages and the 150 Day Liquidated Damages, the "Liquidated Damages"). Notwithstanding the foregoingforegoing provisions, the amounts payable by in no event shall the Company be obligated to pay any Liquidated Damages pursuant to this Section shall not be payable 6.2 (i) to the extent any delay more than one New Investor in the effectiveness respect of the Registration Statement occurs because same Shares or Warrants for the same period of an act oftime, or a failure (ii) with respect to act or to act timely by the Investor. The damages set forth in this Section shall continue until the obligation is fulfilled or a maximum of twenty-four any Cutback Shares, (24iii) months and shall be paid within three (3) business days after each thirty (30) day period, or portion thereof, until the Registration Statement is declared effective. Failure of the Company to make payment within said three (3) business days shall be considered a default. The Company acknowledges that its failure to have the Registration Statement filed within said one hundred (100) calendar day period or to permit the suspension of the effectiveness of the Registration Statement, will cause the Investor to suffer damages in an amount that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to include in this Agreement a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision set forth in this section represents the parties' good faith effort to quantify such damages and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. The payment of liquidated damages shall not relieve the Company from its obligations to register the Common Stock and deliver the Common Stock pursuant to the terms of this Agreement. The Company shall respond to all SEC comments promptly, and will keep Charleston Capital Corporation or its counsel advised with respect to the SEC's review Warrants or any Warrant Shares, (iv) in respect of any Shares that are eligible to be sold by any New Investor pursuant to Rule 144 and (v) of more than 5.0% of the Registration StatementPurchase Price, in the aggregate.
(cg) The Company agrees not Notwithstanding anything herein to include any other securities, other than the Common Stock underlying the units, in this Registration Statement without Investor's prior written consent. Furthermorecontrary, the Company agrees that it will not file, without the consent in its sole discretion may pay any Liquidated Damages in either (i) cash or (ii) additional shares of a majority of the Invesotrs, any other Registration Statement for other securities, for a period of 0ne hundred eighty (180) calendar days after the Registration Statement for the Registrable Securities is declared effective and remains effective for ninety (90) calendar days, unless it is for common stock. Such additional financing being made shares shall be valued by the Investor in this Offering.
average VWAP five (d5) Nothing contained in this Agreement trading days prior to when such Liquidated Damages shall be deemed to establish or require the payment of interest to the Investor at a rate in excess of the maximum rate permitted by governing law. In the event that the rate of interest required to be paid exceeds the maximum rate permitted by governing law, the rate of interest required to be paid thereunder shall be automatically reduced to the maximum rate permitted under the governing law and such excess shall be returned with reasonable promptness by the Investor to the Companypaid.
(e) The Company shall bear registration expenses of the Registration Statement and its counsel shall prepare and file the Registration Statement. Charleston Capital Corporation and any other person for whom Registrable Securities are included in the Registration Statement will bear their own expenses. Each such person will also provide the Company with information regarding "Selling Securityholders" and "Plan of Distribution" and other information required to be included about them, their stock and Warrant ownership, and otherwise that is necessary to be included in the Registration Statement. Charleston Capital Corporation understands that it and persons associated with it will likely be considered to be underwriters by the SEC and the SEC will likely require this disclosure in the Registration Statement.
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Samples: Securities Purchase Agreement (Bluefire Ethanol Fuels Inc)
Delay in Filing or Effectiveness of Registration Statement. (a) The Company shall use its best efforts to ensure that a registration statement (the "Registration Statement") is filed on or before Filing Date as defined in Section 5.2, above (which date is referred to herein as the "Registration Filing DateDeadline"). The Registration Statement will include for resale by the Holders in accordance with the plan of distribution set forth therein the Common Stock included within the units and the Common Stock underlying the Warrants (the "Registrable Securities"), but not the Warrants themselves. In the event the Registration Statement covering this offering is not filed on or before the Registration Filing DateDeadline, the Company shall pay the Investor, as liquidated damages, 12% of the purchase price of the Units units for every 30 calendar day period that the Registration Statement is not filed. No payment shall be required if the delay is ten days or less; the liquidated damages will be 1% if the delay is more than ten days but not more than twenty days.
(b) The Company shall use its best efforts to cause such Registration Statement to become effective on or before ninety calendar days following the Filing Date. In the event the Registration Statement is not declared effective within ninety (90) calendar days following the Registration Filing Deadline (unless the delay was caused by the failure of any person named in the Registration Statement as a selling securityholder to provide the Company with information regarding the selling securityholder necessary to be included therein or to agree to a customary cross indemnification agreement), the Company shall pay the Investor, as liquidated damages, 2% of the purchase price of the units for every 30 calendar day period, or portion thereof, that the registration statement is not declared effective. No payment shall be required if the delay is ten days or less; the liquidated damages will be 1% if the delay is more than ten days but not more than twenty days. Any liquidated damages shall be paid in cash or freely trading common stock at the Company's option, and such damages shall continue until the obligation is fulfilled, subject to a maximum of twenty-four (24) 12 months from the Closing Date. If paid in freely trading Common Stock the pricing for the shares The Company shall be based on the 5-day average closing bid price for the Common Stock for the 3 days prior respond to all SEC comments promptly, and will keep Park Capital Securities, LLC, vFinance, Inc. or their counsel advised with respect to the date the shares are delivered to the Investor. Notwithstanding the foregoing, the amounts payable by the Company pursuant to this Section shall not be payable to the extent any delay in the filing SEC's review of the Registration Statement occurs because of an act of, or a failure to act or to act timely by the Investor. The damages set forth in this Section shall continue until the obligation is fulfilled and shall be paid within three (3) business days after each thirty (30) day period, or portion thereof, until the Registration Statement is filed. Failure of the Company to make payment within said three (3) business days shall be considered a defaultStatement. The Company acknowledges that its failure to have the Registration Statement filed within said forty-five (45) calendar day period will cause the Investor to suffer damages in an amount that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to include in this Agreement a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision set forth in this section represents the parties' good faith effort to quantify such damages and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. The payment of liquidated damages shall not relieve the Company from its obligations to register the Common Stock and deliver the Common Stock pursuant to the terms of this Agreement.
(b) The Company shall use its best efforts to cause such Registration Statement to become effective on or before the Effective Date. The Company represents and warrants that it shall cause the Registration Statement relating to the Registrable Securities to become effective no later than three (3) business days after notice from the SEC that the Registration Statement may be declared effective. In the event the Registration Statement is not declared effective within one hundred (100) calendar days following the Closing Date (unless the delay was caused by the failure of Investors, who have invested more than 50% of the amount of gross funds raised on the Closing Date, to provide the Company with information regarding such Investors necessary to be included therein or to agree to a customary cross indemnification agreement), the Company shall pay the non-defaulting Investors, as liquidated damages, 1% of the purchase price of the Units for every 30 calendar day period, or portion thereof, that the registration statement is not declared effective. Any liquidated damages shall be paid in cash or freely trading common stock at the Company's option, and such damages shall continue until the obligation is fulfilled, subject to a maximum of twenty-four (24) months from the Closing Date. If the Registration Statement covering the Registrable Securities required to be filed by the Company is declared effective, but after the effective date the Investor's right to sell is suspended, then the Company shall pay the Investor the sum of one percent (1%) of the purchase price paid by the Investor for the Units pursuant to this Agreement for each thirty (30) calendar day period, pro rata, following the suspension until such suspension ceases. If paid in freely trading Common Stock the pricing for the shares shall be based on the 5-day average closing bid price for the Common Stock for the 3 days prior to the date the shares are delivered to the Investor. Notwithstanding the foregoing, the amounts payable by the Company pursuant to this Section shall not be payable to the extent any delay in the effectiveness of the Registration Statement occurs because of an act of, or a failure to act or to act timely by the Investor. The damages set forth in this Section shall continue until the obligation is fulfilled or a maximum of twenty-four (24) months and shall be paid within three (3) business days after each thirty (30) day period, or portion thereof, until the Registration Statement is declared effective. Failure of the Company to make payment within said three (3) business days shall be considered a default. The Company acknowledges that its failure to have the Registration Statement filed within said one hundred (100) calendar day period or to permit the suspension of the effectiveness of the Registration Statement, will cause the Investor to suffer damages in an amount that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to include in this Agreement a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision set forth in this section represents the parties' good faith effort to quantify such damages and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. The payment of liquidated damages shall not relieve the Company from its obligations to register the Common Stock and deliver the Common Stock pursuant to the terms of this Agreement. The Company shall respond to all SEC comments promptly, and will keep Charleston Capital Corporation or its counsel advised with respect to the SEC's review of the Registration Statement.
(c) The Company agrees not to include any other securities, other than the Common Stock underlying the units, in this Registration Statement without Investor's prior written consent. Furthermore, the Company agrees that it will not file, without the consent of a majority of the Invesotrs, any other Registration Statement for other securities, for a period of 0ne hundred eighty (180) calendar days after the Registration Statement for the Registrable Securities is declared effective and remains effective for ninety (90) calendar days, unless it is for additional financing being made by the Investor in this Offering.
(d) Nothing contained in this Agreement shall be deemed to establish or require the payment of interest to the Investor at a rate in excess of the maximum rate permitted by governing law. In the event that the rate of interest required to be paid exceeds the maximum rate permitted by governing law, the rate of interest required to be paid thereunder shall be automatically reduced to the maximum rate permitted under the governing law and such excess shall be returned with reasonable promptness by the Investor to the Company.
(e) The Company shall bear registration expenses of the Registration Statement and its counsel shall prepare and file the Registration Statement. Charleston Park Capital Corporation Securities, LLC, vFinance, Inc. and any other person for whom Registrable Securities are included in the Registration Statement will bear their own expenses. Each such person will also provide the Company with information regarding "Selling Securityholders" and "Plan of Distribution" and other information required to be included about them, their stock and Warrant ownership, and otherwise that is necessary to be included in the Registration Statement. Charleston Park Capital Corporation understands Securities, LLC and vFinance, Inc. understand that it they and persons associated with it them will likely be considered to be underwriters by the SEC and the SEC will likely require this disclosure in the Registration Statement.. ARTICLE VI
Appears in 1 contract
Delay in Filing or Effectiveness of Registration Statement. If (a) The Company shall use its best efforts to ensure that a registration statement the Registration Statement is (A) not filed with the "Registration Statement") is filed Commission on or before the either the Filing DateDeadline (a “Filing Failure”), or (B) is not declared effective by the Commission on or before the Registration Statement Effectiveness Deadline (an “Effectiveness Failure”) or (b) on any day after the Effective Date sales of all of the Securities required to be included on such Registration Statement cannot be made (other than during an Allowable Suspension Period (as defined in Section 5.10)) pursuant to such Registration Statement or otherwise (including as a result of a failure to keep such Registration Statement effective or to disclose such information as is necessary for sales to be made pursuant to such Registration Statement) (a “Maintenance Failure”) then, as relief for the damages to any Investor by reason of any such delay in or reduction of its ability to sell such Securities, the Company shall pay to each Investor relating to such Registration Statement an amount in cash equal to $0.08 per share of Common Stock the resale of which is covered by the Registration Statement on each of the following dates: (i) on every thirtieth day (pro rated for periods totaling less than thirty (30) days) after a Filing Failure until the date such Filing Failure is cured; (ii) on every thirtieth day (pro rated for periods totaling less than thirty (30) days) after an Effectiveness Failure until the date such Effectiveness Failure is cured; and (iii) on every thirtieth day (pro rated for periods totaling less than thirty (30) days) after a Maintenance Failure until the date such Maintenance Failure is cured. The payments to which an Investor shall be entitled to pursuant to this Section 7.7 are referred to herein “Registration Statement will include for resale by Delay Payments.” Registration Delay Payments shall be paid on the Holders in accordance with earlier of (x) the plan last day of distribution set forth therein the Common Stock included within calendar month during which such Registration Delay Payments are incurred and (y) the units and third business day after the Common Stock underlying event or failure giving rise to the Warrants (the "Registrable Securities"), but not the Warrants themselvesRegistration Delay Payments is cured. In the event the Company fails to make Registration Statement covering Delay Payments in a timely manner, such Registration Delay Payments shall bear interest at the rate of 1.5% per month (prorated for partial months) until paid in full. The parties agree that the maximum aggregate Registration Delay Payments payable to an Investor under this offering Agreement shall be $0.96 per share of Common Stock the resale of which is not filed on or before covered by the Filing DateRegistration Statement. In addition, and notwithstanding anything to the contrary contained herein, if the Company shall pay has received a comment by the Investor, Commission requiring an Investor to be named as liquidated damages, 1% of the purchase price of the Units for every 30 calendar day period that an underwriter in the Registration Statement that, notwithstanding the reasonable best efforts of the Company, is not filed. Any liquidated damages shall be paid in cash or freely trading common stock at withdrawn by the Company's option, Commission and such damages shall continue until the obligation is fulfilled, subject to a maximum of twenty-four (24) months from the Closing Date. If paid Investor elects in freely trading Common Stock the pricing for the shares shall be based on the 5-day average closing bid price for the Common Stock for the 3 days prior to the date the shares are delivered to the Investor. Notwithstanding the foregoing, the amounts payable by the Company pursuant to this Section shall writing not be payable to the extent any delay in the filing of the Registration Statement occurs because of an act of, or a failure to act or to act timely by the Investor. The damages set forth in this Section shall continue until the obligation is fulfilled and shall be paid within three (3) business days after each thirty (30) day period, or portion thereof, until the Registration Statement is filed. Failure of the Company to make payment within said three (3) business days shall be considered a default. The Company acknowledges that its failure to have the Registration Statement filed within said forty-five (45) calendar day period will cause the Investor to suffer damages in an amount that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to include in this Agreement a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision set forth in this section represents the parties' good faith effort to quantify such damages and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. The payment of liquidated damages shall not relieve the Company from its obligations to register the Common Stock and deliver the Common Stock pursuant to the terms of this Agreement.
(b) The Company shall use its best efforts to cause such Registration Statement to become effective on or before the Effective Date. The Company represents and warrants that it shall cause the Registration Statement relating to the Registrable Securities to become effective no later than three (3) business days after notice from the SEC that the Registration Statement may be declared effective. In the event the Registration Statement is not declared effective within one hundred (100) calendar days following the Closing Date (unless the delay was caused by the failure of Investors, who have invested more than 50% of the amount of gross funds raised on the Closing Date, to provide the Company with information regarding such Investors necessary to be included therein or to agree to named as a customary cross indemnification agreement), the Company shall pay the non-defaulting Investors, as liquidated damages, 1% of the purchase price of the Units for every 30 calendar day period, or portion thereof, that the registration statement is not declared effective. Any liquidated damages shall be paid selling stockholder in cash or freely trading common stock at the Company's option, and such damages shall continue until the obligation is fulfilled, subject to a maximum of twenty-four (24) months from the Closing Date. If the Registration Statement covering the Registrable Securities required to be filed by the Company is declared effective, but after the effective date the Investor's right to sell is suspended, then the Company shall pay the Investor the sum of one percent (1%) of the purchase price paid by the Investor for the Units pursuant to this Agreement for each thirty (30) calendar day period, pro rata, following the suspension until such suspension ceases. If paid in freely trading Common Stock the pricing for the shares shall be based on the 5-day average closing bid price for the Common Stock for the 3 days prior to the date the shares are delivered to the Investor. Notwithstanding the foregoing, the amounts payable by the Company pursuant to this Section shall not be payable to the extent any delay in the effectiveness of the Registration Statement occurs because of an act of, or a failure to act or to act timely by the Investor. The damages set forth in this Section shall continue until the obligation is fulfilled or a maximum of twenty-four (24) months and shall be paid within three (3) business days after each thirty (30) day period, or portion thereof, until the Registration Statement is declared effective. Failure of the Company to make payment within said three (3) business days shall be considered a default. The Company acknowledges that its failure to have the Registration Statement filed within said one hundred (100) calendar day period or to permit the suspension of the effectiveness of the Registration Statement, will cause the Investor to suffer damages in an amount that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to include in this Agreement a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision set forth in this section represents the parties' good faith effort to quantify such damages and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. The payment of liquidated damages shall not relieve the Company from its obligations be entitled to register the Common Stock and deliver the Common Stock pursuant to the terms of this Agreement. The Company shall respond to all SEC comments promptly, and will keep Charleston Capital Corporation or its counsel advised with respect to the SEC's review of the any Registration StatementDelay Payments.
(c) The Company agrees not to include any other securities, other than the Common Stock underlying the units, in this Registration Statement without Investor's prior written consent. Furthermore, the Company agrees that it will not file, without the consent of a majority of the Invesotrs, any other Registration Statement for other securities, for a period of 0ne hundred eighty (180) calendar days after the Registration Statement for the Registrable Securities is declared effective and remains effective for ninety (90) calendar days, unless it is for additional financing being made by the Investor in this Offering.
(d) Nothing contained in this Agreement shall be deemed to establish or require the payment of interest to the Investor at a rate in excess of the maximum rate permitted by governing law. In the event that the rate of interest required to be paid exceeds the maximum rate permitted by governing law, the rate of interest required to be paid thereunder shall be automatically reduced to the maximum rate permitted under the governing law and such excess shall be returned with reasonable promptness by the Investor to the Company.
(e) The Company shall bear registration expenses of the Registration Statement and its counsel shall prepare and file the Registration Statement. Charleston Capital Corporation and any other person for whom Registrable Securities are included in the Registration Statement will bear their own expenses. Each such person will also provide the Company with information regarding "Selling Securityholders" and "Plan of Distribution" and other information required to be included about them, their stock and Warrant ownership, and otherwise that is necessary to be included in the Registration Statement. Charleston Capital Corporation understands that it and persons associated with it will likely be considered to be underwriters by the SEC and the SEC will likely require this disclosure in the Registration Statement.
Appears in 1 contract
Delay in Filing or Effectiveness of Registration Statement. (a) The Company shall use its best efforts to ensure that a registration statement (the "Registration Statement") is filed on or before the Filing Date. The Registration Statement will include for resale by the Holders in accordance with the plan of distribution set forth therein the Common Stock included within the units and the Common Stock underlying the Warrants (the "Registrable Securities"), but not the Warrants themselves. In the event the Registration Statement covering this offering is not filed on or before the Filing Date, the Company shall pay the Investor, as liquidated damages, 1% of the purchase price of the Units for every 30 calendar day period that If the Registration Statement is not filed. Any liquidated damages shall be paid in cash filed by the Company with the SEC on or freely trading common stock at the Company's option, and such damages shall continue until the obligation is fulfilled, subject to a maximum of twenty-four (24) months from the Closing Date. If paid in freely trading Common Stock the pricing for the shares shall be based on the 5-day average closing bid price for the Common Stock for the 3 days prior to the date Filing Deadline Date, then for each day following the shares are delivered to the Investor. Notwithstanding the foregoing, the amounts payable by the Company pursuant to this Section shall not be payable to the extent any delay in the filing of the Registration Statement occurs because of an act of, or a failure to act or to act timely by the Investor. The damages set forth in this Section shall continue until the obligation is fulfilled and shall be paid within three (3) business days after each thirty (30) day period, or portion thereofFiling Deadline Date, until but excluding the date the Registration Statement is filed. Failure of the Company to make payment within said three (3) business days shall be considered a default. The Company acknowledges that its failure to have the Registration Statement filed within said forty-five (45) calendar day period will cause the Investor to suffer damages in an amount that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to include in this Agreement a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision set forth in this section represents the parties' good faith effort to quantify such damages and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. The payment of liquidated damages shall not relieve the Company from its obligations to register the Common Stock and deliver the Common Stock pursuant to the terms of this Agreement.
(b) The Company shall use its best efforts to cause such Registration Statement to become effective on or before the Effective Date. The Company represents and warrants that it shall cause the Registration Statement relating to the Registrable Securities to become effective no later than three (3) business days after notice from the SEC that the Registration Statement may be declared effective. In the event if the Registration Statement is not declared effective by the SEC by the Effectiveness Deadline Date, then for each day following the Effectiveness Deadline Date, until but excluding the date the SEC declares the Registration Statement effective (or if such Registration Statement is declared effective the Company thereafter fails to maintain the effectiveness of such Registration Statement), the Company shall, for each such day, pay each Investor in cash (“Registration Delay Payments”) as reasonable compensation and not as a penalty, an amount equal to 0.0493% of the Purchase Price of each Share held by such Investor with respect to any such failure and for any such day. Such payment shall be made no later than the fifth business day of the calendar month next succeeding the month in which such day occurs. Such Registration Delay Payments shall constitute the Investors’ exclusive remedy for monetary damages at law, but not in equity, for such events. Nothing herein shall diminish or limit any Investor’s rights to seek equitable relief, including the remedy of specific performance.
(b) Notwithstanding the foregoing, no Registration Delay Payments shall be due or payable hereunder if the Company has filed the Registration Statement with the SEC on or prior to the Filing Deadline Date, has received a “comment letter” from the SEC and has responded within one hundred ten (10010) calendar days following the Closing Date Company’s receipt of such comment letter, provided that the Company has communicated the SEC’s comments to the Investors within ten (unless 10) days of the delay was caused Company’s receipt thereof in a professional and businesslike manner consistent with best practices before the Securities and Exchange Commission. The Investors shall be bound by the failure provisions of Investorsthis Agreement (including, who have invested more than 50% without limitation, the provisions of Section 7 hereof) with respect to any and all non-public information communicated to them pursuant to this Section 0. Furthermore, commencing on the amount of gross funds raised on date that that is one-year after the Closing Date, to provide the Company with information regarding such Investors necessary to be included therein or to agree to a customary cross indemnification agreement), the Company shall pay the non-defaulting Investors, as liquidated damages, 1% of the purchase price of the Units for every 30 calendar day period, or portion thereof, that the registration statement is not declared effective. Any liquidated damages no Registration Delay Payments shall be paid in cash due or freely trading common stock at the Company's option, and such damages shall continue until the obligation is fulfilled, subject to a maximum payable if all of twenty-four (24) months from the Closing Date. If the Registration Statement covering the an Investor’s Registrable Securities required to can be filed by the Company is declared effective, but after the effective date the Investor's right to sell is suspended, then the Company shall pay the Investor the sum of one percent (1%) of the purchase price paid by the Investor for the Units pursuant to this Agreement for each thirty (30) calendar day period, pro rata, following the suspension until such suspension ceases. If paid immediately sold without restriction in freely trading Common Stock the pricing for the shares shall be based reliance on the 5-day average closing bid price for the Common Stock for the 3 days prior to the date the shares are delivered to the Investor. Notwithstanding the foregoing, the amounts payable by the Company pursuant to this Section shall not be payable to the extent any delay in the effectiveness of the Registration Statement occurs because of an act of, or a failure to act or to act timely by the Investor. The damages set forth in this Section shall continue until the obligation is fulfilled or a maximum of twenty-four (24) months and shall be paid within three (3) business days after each thirty (30) day period, or portion thereof, until the Registration Statement is declared effective. Failure of the Company to make payment within said three (3) business days shall be considered a default. The Company acknowledges that its failure to have the Registration Statement filed within said one hundred (100) calendar day period or to permit the suspension of the effectiveness of the Registration Statement, will cause the Investor to suffer damages in an amount that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to include in this Agreement a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision set forth in this section represents the parties' good faith effort to quantify such damages and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. The payment of liquidated damages shall not relieve the Company from its obligations to register the Common Stock and deliver the Common Stock pursuant to the terms of this Agreement. The Company shall respond to all SEC comments promptly, and will keep Charleston Capital Corporation or its counsel advised with respect to the SEC's review of the Registration StatementRule 144(k).
(c) The Company agrees not to include any other securities, other than the Common Stock underlying the units, in this Registration Statement without Investor's prior written consent. Furthermore, the Company agrees that it will not file, without the consent of a majority of the Invesotrs, any other Registration Statement for other securities, for a period of 0ne hundred eighty (180) calendar days after the Registration Statement for the Registrable Securities is declared effective and remains effective for ninety (90) calendar days, unless it is for additional financing being made by the Investor in this Offering.
(d) Nothing contained in this Agreement shall be deemed to establish or require the payment of interest to the Investor at a rate in excess of the maximum rate permitted by governing law. In the event that the rate of interest required to be paid exceeds the maximum rate permitted by governing law, the rate of interest required to be paid thereunder shall be automatically reduced to the maximum rate permitted under the governing law and such excess shall be returned with reasonable promptness by the Investor to the Company.
(e) The Company shall bear registration expenses of the Registration Statement and its counsel shall prepare and file the Registration Statement. Charleston Capital Corporation and any other person for whom Registrable Securities are included in the Registration Statement will bear their own expenses. Each such person will also provide the Company with information regarding "Selling Securityholders" and "Plan of Distribution" and other information required to be included about them, their stock and Warrant ownership, and otherwise that is necessary to be included in the Registration Statement. Charleston Capital Corporation understands that it and persons associated with it will likely be considered to be underwriters by the SEC and the SEC will likely require this disclosure in the Registration Statement.
Appears in 1 contract
