Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following: (a) Prepare promptly, and file with the SEC by the Required Filing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (ii) the date the Investor no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; (b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement; (c) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed; (d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon; (e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Investor; (f) As promptly as practicable after becoming aware thereof, notify the Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request; (g) [intentionally omitted ] (h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company; (i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market; (j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date; (k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and (l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement.
Appears in 6 contracts
Samples: Registration Rights Agreement (Advanced Technology Industries Inc), Registration Rights Agreement (Brilliant Technologies, CORP), Registration Rights Agreement (Brilliant Technologies, CORP)
Obligations of the Company. In connection with Whenever required under this Section 2 to effect the registration of the any Registrable Securities, the Company shall do each of the followingshall, as expeditiously as reasonably possible:
(a) Prepare promptly, and file with the SEC by the Required Filing Date, a Registration Statement registration statement with respect to not less than the number of such Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities registration statement to become effective by the Required Effective Date effective, and keep the Registration Statement such registration statement effective at all timesfor a period of up to one hundred eighty (180) days or, other than during Permitted Suspension Periodsif earlier, during the period (the "Registration Period") continuing until the earlier of distribution contemplated in the registration statement has been completed; provided, however, that (i) such 180-day period shall be extended for a period of time equal to the date when period the Investor may sell all Registrable Securities under Rule 144 without volume Purchaser refrains from selling any securities included in such registration at the request of an underwriter of Common Stock (or other restrictions securities) of the Company or limits or at the request of the Company pursuant to Subsection (iii) below, (ii) in the date case of any registration of Registrable Securities on Form S-3 which are intended to be offered on a continuous or delayed basis, such 180-day period shall be extended, at the Investor no longer own any request of the Purchaser, to keep the registration statement effective until all such Registrable SecuritiesSecurities are sold, which Registration Statement obligation shall include, to the extent that such effectiveness cannot be maintained merely by the filing of a periodic or other report under the 1934 Act, the filing of a post-effective amendment; provided that Rule 415, or any successor rule under the Act, permits an offering on a continuous or delayed basis, and (including any amendments or supplements thereto and prospectuses contained thereiniii) the Company shall not contain any untrue statement of a material fact or omit to state a material fact be required to be stated therein or necessary keep such registration statement effective during a period not to make the statements thereinexceed ninety (90) consecutive days, not more than once in any 12-month period, in light which it is determined by the Board of Directors in good faith that there exists material non-public information regarding the circumstances in which they were made, not misleading;Company.
(b) Prepare Timely prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement such registration statement and the prospectus used in connection with the Registration Statement such registration statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities securities covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;registration statement.
(c) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) Purchasers such number numbers of copies of a prospectus, and all amendments and supplements thereto including a preliminary prospectus, in conformity with the requirements of the Act, and such other documents, documents as the Investor Purchasers may reasonably request in order to facilitate the disposition of the Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the Investor;securities covered by such registration statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably requested by the Purchasers; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions unless the Company is already subject to service in such jurisdiction and except as may be required by the Act.
(e) Enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of such offering. Each Purchaser participating in such underwriting shall also enter into and perform its obligations under such an agreement.
(f) As promptly as practicable after becoming aware thereof, notify Notify each Purchaser holding Registrable Securities covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Investor Act of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statementsuch registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, therein not misleading in the light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omissionthen existing, and deliver at the request of any such Purchaser, timely prepare and furnish to such Purchaser a reasonable number of copies of a supplement to or an amendment of such supplement or amendment prospectus as may be necessary so that, as thereafter delivered to the Investor as purchaser of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the Investor may reasonably request;statements therein not misleading or incomplete in the light of the circumstances then existing.
(g) [intentionally omitted ]Cause all such Registrable Securities registered pursuant hereunder to be listed on each securities exchange on which similar securities issued by the Company are then listed.
(h) Comply with Regulation FD or any similar rule or regulation regarding Provide a transfer agent and registrar for all Registrable Securities registered pursuant hereunder and a CUSIP number for all such Registrable Securities, in each case not later than the dissemination effective date of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;such registration statement.
(i) Use its reasonable best efforts to secure and maintain furnish, at the designation request of all the any Purchaser requesting registration of Registrable Securities covered pursuant to this Section 2, on the date that such Registrable Securities are delivered to the underwriters for sale in connection with a registration pursuant to this Section 2, if such securities are being sold through underwriters, or, if such securities are not being sold through underwriters, on the date that the registration statement with respect to such securities becomes effective, (i) an opinion, dated such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to the Purchasers requesting registration of Registrable Securities, and (ii) “comfort” letters signed by the Registration Statement Company’s independent public accountants who have examined and reported on the Principal Trading Market Company’s financial statements included in the registration statement, to the extent permitted by the standards of the AICPA or other relevant authorities, covering substantially the same matters with respect to the registration statement (and the quotation prospectus included therein) and (in the case of the Registrable Securities on accountants’ “comfort” letters, with respect to events subsequent to the Principal Trading Market;date of the financial statements) as are customarily covered in opinions of issuer’s counsel and in accountants’ “comfort” letters delivered to the underwriters in underwritten public offerings of securities.
(j) Provide a transfer agent ("Transfer Agent") and registrarMake available for inspection by any seller of Registrable Securities, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered any underwriter participating in any disposition pursuant to such registration statement and any attorney or accountant retained by any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliverCompany, and cause the Company’s officers and directors to supply all information reasonably requested by any such seller, underwriter, attorney or accountant in connection with establishing a defense under Section 11 of the Act with respect to such registration statement; provided, however, that such seller, underwriter, attorney or accountant shall cause legal counsel selected by the Company agree to deliver, to the Transfer Agent for the Registrable Securities hold in confidence and trust all information so provided until such information becomes publicly available (with copies to the Investor) an appropriate instruction and opinion other than as a result of a violation of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates obligation of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statementconfidentiality).
Appears in 6 contracts
Samples: Registration Rights Agreement (Equity One, Inc.), Registration Rights Agreement (Equity One, Inc.), Registration Rights Agreement (Equity One, Inc.)
Obligations of the Company. In connection with Whenever required to effect the registration of the any Registrable Securities, the Company shall do each of the followingshall, use it commercially reasonable efforts to:
(a) Prepare promptly, and file with the SEC by the Required Filing Date, a Registration Statement registration statement with respect to not less than the number of such Registrable Securities provided in Section 2(a) above, and thereafter use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effective, and, upon the request of the Holders of a majority of the Registrable Securities registered thereunder, keep such registration statement effective for up to ninety (90) days or, if earlier, until the Holder or Holders have completed the distribution related thereto; provided, however, that at any time, upon written notice to the participating Holders and for a period not to exceed sixty (60) days thereafter (the “Suspension Period”), the Company may delay the filing or effectiveness of any registration statement or suspend the use or effectiveness of any registration statement (and the Initiating Holders hereby agree not to offer or sell any Registrable Securities pursuant to such registration statement during the Suspension Period) if the Company reasonably believes that the Company may, in the absence of such delay or suspension hereunder, be required under state or federal securities laws to disclose any corporate development the disclosure of which could reasonably be expected to have an adverse effect upon the Company, its stockholders, a potentially significant transaction or event involving the Company, or any negotiations, discussions, or proposals directly relating thereto. No more than two (2) such Suspension Periods shall occur in any twelve (12) month period. In the event that the Company shall exercise its rights hereunder, the applicable time period during which the registration statement is to remain effective shall be extended by a period of time equal to the duration of the Suspension Period. The Company may extend the Suspension Period for an additional consecutive sixty (60) days with the consent of the sixty-six and two-thirds percent (66 2/3%) of the Registrable Securities proposed to be sold by the Initiating Holders, which consent shall not be unreasonably withheld. If so directed by the Company, the Initiating Holders shall use their reasonable efforts to deliver to the Company (at the Company’s expense) or destroy all copies, other than permanent file copies then in such Initiating Holders’ possession, of the prospectus relating to such Registrable Securities current at the time of receipt of such notice. The Company shall not be required to file, cause to become effective by or maintain the Required Effective Date and keep effectiveness of any registration statement that contemplates a distribution of securities on a delayed or continuous basis pursuant to Rule 415 under the Registration Statement effective at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (ii) the date the Investor no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;Act.
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement such registration statement and the prospectus used in connection with the Registration Statement such registration statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities securities covered by such registration statement for the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as period set forth in the Registration Statement;paragraph (a) above.
(c) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) Holders such number of copies of a prospectus, and all amendments and supplements thereto including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents, documents as the Investor they may reasonably request in order to facilitate the disposition of the Registrable Securities owned by them.
(d) Register and qualify the Investor;securities covered by such registration statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably requested by the Holders; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of such offering. Each Holder participating in such underwriting shall also enter into and perform its obligations under such underwriting agreement.
(f) As promptly as practicable after becoming aware thereof, notify the Investor of the happening of any event of Cause all such Registrable Securities registered pursuant to this Agreement to be listed on a national securities exchange or trading system and each securities exchange and trading system on which similar securities issued by the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as are then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;listed.
(g) [intentionally omitted ]Provide a transfer agent and registrar for all Registrable Securities registered pursuant hereto and a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration.
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain furnish, on the designation of all the date that such Registrable Securities covered are delivered to the underwriters for sale, if such securities are being sold through underwriters, those items required to be delivered by the Registration Statement or on the Principal Trading Market and the quotation behalf of the Registrable Securities on Company to the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered underwriters pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statementunderwriting agreement.
Appears in 5 contracts
Samples: Investor Rights Agreement, Investor Rights Agreement (Gemphire Therapeutics Inc.), Investor Rights Agreement (Gemphire Therapeutics Inc.)
Obligations of the Company. In connection with If and whenever the registration Company is required pursuant to Section 2 or Section 3 to effect a Registration of the Registrable Securities, the Company shall do each shall, subject to the provisions of the followingSection 2 or Section 3:
(a) Prepare promptly, prepare and file with the SEC by the Required Filing Date, a Registration Statement with respect to not less than the number of covering such Registrable Securities provided in Section 2(a) above, and thereafter use its commercially reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by and remain effective as provided herein;
(b) use commercially reasonable efforts to prepare and file with the Required Effective Date SEC such amendments and keep the supplements to such Registration Statement as may be necessary to keep such Registration Statement and Prospectus used in connection therewith effective at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing least until the earlier of (i) 90 days after the effective date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or of such Registration Statement, and (ii) the date completion of the Investor no longer own any distribution by the Holder of all of the Registrable Securities, which Securities covered by such Registration Statement (including the "Effectiveness Period");
(c) use commercially reasonable efforts to register or qualify the Registrable Securities covered by such Registration Statement under the securities or blue sky laws of such states within the United States as the Company determines, provided that the Company shall not for any amendments such purpose be required to qualify generally to do business as a foreign corporation in any state wherein it is not so qualified, subject itself to taxation in any state wherein it is not so subject, or supplements take any action which would subject it to general service of process in any state wherein it is not so subject; and
(i) notify the Holder of Registrable Securities covered by such Registration Statement if, to its knowledge, such Registration Statement, at the time it or any amendment thereto became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, as promptly as practicable, prepare and prospectuses contained therein) file with the SEC a post-effective amendment to such Registration Statement and use commercially reasonable efforts to cause such post-effective amendment to become effective such that such Registration Statement, as so amended, shall not contain any 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, in light of the circumstances in which they were made, therein not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number notify the Holder of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned covered by such Registration Statement, at any time when a Prospectus relating thereto is required to be delivered under the Investor;
(f) As promptly as practicable after becoming aware thereofSecurities Act, notify the Investor of the happening of any event of which the Company has if, to its knowledge, as a result of which the prospectus Prospectus included in the such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c)as promptly as practicable, use its best efforts promptly to prepare a supplement or amendment and furnish to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver Holder a reasonable number of copies of a supplement to or an amendment of such supplement or amendment Prospectus as may be necessary so that, as thereafter delivered to the Investor as purchasers of such securities, such Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the Investor may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Companystatements therein, and in furtherance light of the foregoing, and not in limitation thereofcircumstances under which they were made, not disclose to misleading. The Holder agrees that upon receipt of any notice from the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered Company pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SECSection 5.1(d), the Company shall deliver, and shall cause legal counsel selected by Holder will promptly discontinue the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion Holder's disposition of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration StatementStatement covering such Registrable Securities until the Holder shall have received notice from the Company that such Registration Statement has been amended and/or copies of the supplemented or amended Prospectus contemplated by Section 5.1(d) have been furnished. If so directed by the Company, the Holder of Registrable Securities will deliver to the Company all copies, other than permanent file copies, in the Holder's possession of the Prospectus covering such Registrable Securities at the time of receipt of such notice.
Appears in 4 contracts
Samples: Letter of Credit Security Commitment Agreement (Internet America Inc), Letter of Credit Security Commitment Agreement (Hunt William O), Registration Rights Agreement (Internet America Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of have the followingfollowing obligations:
(a) Prepare a. The Company shall prepare promptly, and file with the SEC by Commission as soon as practicable after the Required date of the Closing under the Investment Agreement (the "Closing Date") (but no later than the Filing DateDeadline), a Registration Statement Statements with respect to not less than the number of Registrable Securities provided in Section 2(a) above), and thereafter use its reasonable best efforts to cause each such Registration Statement relating to Registrable Securities to become effective by as soon as possible after such filing, but in any event shall cause each such Registration Statement relating to Registrable Securities to become effective no later than the Required Effective Date and Effectiveness Deadline, and, subject to any Allowed Delay, the Company shall keep the Registration Statement current and effective (and the prospectus contained therein available for use) pursuant to Rule 415 for resales by the Investor on a delayed or continuous basis at then-prevailing market prices (and not fixed prices) at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing times until such date as is the earlier of (i) the date when on which all of the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or for such Registration Statement have been sold and (ii) the date the Investor no longer own any on which all of the Registrable Securities, which Securities for such Registration Statement (as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holder) may be immediately sold to the public without registration or restriction (including any without limitation as to volume by each holder thereof), pursuant to Rule 144 and without the need for current public information as required by Rule 144(c)(1) (or Rule 144(i)(2), if applicable) (the "Registration Period"). Notwithstanding anything to the contrary contained in this Agreement, the Company shall ensure that, when filed and at all times while effective, each Registration Statement (including, without limitation, all amendments or and supplements thereto thereto) and prospectuses contained thereinthe prospectus (including, without limitation, all amendments and supplements thereto) used in connection with such Registration Statement (1) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements thereintherein (in the case of prospectuses, in the light of the circumstances in which they were made, ) not misleading;misleading and (2) will disclose (whether directly or through incorporation by reference to other SEC filings to the extent permitted) all material information regarding the Company and its securities.
(b) Prepare b. The Company shall prepare and file with the SEC Commission such amendments (including post-effective amendments) and supplements (collectively, “Registration Supplements”) to the each Registration Statement and the prospectus used in connection with the Registration Statement Statements, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep the Registration Statement Statements current and effective at all times during the Registration Period (except and as required by applicable securities regulations, and during Permitted Suspension Periods), and, during the Registration Periodsuch period, comply with the provisions of the Securities 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement Statements until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm Statements. In the case of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto to any Registration Statement which are required to be filed pursuant to this Agreement (including, without limitation, pursuant to this Section 3(b)) by reason of the Company filing a reasonable report on Form 10-Q or Form 10-K or any analogous report under the 1934 Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement. The Company consents to the use of the prospectus (including, without limitation, any supplement thereto) included in each Registration Statement in accordance with the provisions of the Securities Act and with the securities or “blue sky” laws of the jurisdictions in which the Registrable Securities may be sold by the Investor, in connection with the resale of the Registrable Securities and for such period of time thereafter as such prospectus (but not less than three including, without limitation, any supplement thereto) (3or in lieu thereof, the notice referred to in Rule 173(a) business daysunder the Securities Act) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law the Securities Act to be so filed;delivered in connection with resales of Registrable Securities.
(d) Notify c. In the Investor and the Investor's Counsel and any managing underwriters immediately (andevent that, in the case of (i)(A) below, not less than three (3) business days prior whether due to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies orShortfall or an SEC Share Reduction or otherwise, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Initial Registration Statement or any post-effective amendmentAdditional Registration does not initially cover, when or at any time does not cover, the same has become effective; resale of all Registrable Securities (iithe date of each of which is referred to as a “Registration Trigger Date”), or in the event that on any Trading Day (as defined in the Investment Agreement) (each such Trading Day is also referred to as a "Registration Trigger Date") the number of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to the shares available under a Registration Statement or Prospectus or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement covering any or filed pursuant to this Agreement is otherwise insufficient to cover all of the Registrable Securities issued or issuable pursuant to the initiation of any proceedings for that purpose; Transaction Documents, the Company shall amend the Registration Statement, or file a new Registration Statement (iv) on the short form available therefore, if applicable), or both (each, an “Additional Registration Statement”), so as to cover at any time any least 100% of the representations total number of Registrable Securities so issued or warranties issuable as of the Registration Trigger Date (subject to an SEC Share Reduction, if applicable). The Company shall prepare and file each Additional Registration Statement as soon as practicable following any Registration Trigger Date, but not later than the date that is sixty (60) days following the applicable Registration Trigger Date (the “Additional Registration Filing Deadline”) until such time as all Registrable Securities have been included in Registration Statements that have been declared effective and the prospectus contained in any agreement (including any underwriting agreement) contemplated hereby ceases therein is available for use by the Investor, provided that, if Cutback Shares are required to be true and correct included in the Additional Registration Statement, the “Additional Registration Filing Deadline” shall mean the later of (i) the date that is sixty (60) days after the date substantially all material respects; (v) of the receipt as such term is then interpreted by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any Commission) of the Registrable Securities for sale in any jurisdiction, or registered under the initiation or threatening of any proceeding for such purpose; and (vi) of the occurrence of any event that to the best knowledge of the Company makes any statement made in the immediately preceding 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, are sold and (ii) such number the date that is six (6) months following the date of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the Investor may reasonably request in order to facilitate the disposition effectiveness of the Registrable Securities owned by the Investor;
(f) As promptly as practicable after becoming aware thereof, notify the Investor of the happening of any event of which the most recently effective Registration Statement or Additional Registration Statement filed hereunder. The Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), shall use its best efforts promptly to prepare a supplement or cause such amendment to the and/or new Registration Statement or other appropriate to become effective as soon as practicable following the filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to but in any event the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Company shall cause such amendment and/or new Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered become effective by the 120th calendar day following the date on which an additional Registration Statement is required to be filed hereunder (or the 150th calendar day after such date in the event that such Registration Statement is subject to review by the SEC, ) (the “Additional Registration Effectiveness Deadline”) or as promptly as practicable in the event the Company shall deliver, and shall cause legal counsel selected by the Company is required to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statementincrease its authorized shares.
Appears in 4 contracts
Samples: Registration Rights Agreement (Vendum Batteries Inc.), Registration Rights Agreement (Medisafe 1 Technologies Corp), Registration Rights Agreement (Dc Brands International Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:.
(a) Prepare promptly, and file with the SEC by forty-five (45) days after the Required Filing initial Closing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) ), above, and thereafter use its reasonable best efforts to cause such each Registration Statement relating to Registrable Securities to become effective the earlier of (a) 5 days after notice by the Required Effective Date SEC that it may be declared effective or (b) one hundred twenty (120) days following the initial Closing Date, and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, during times until the period earliest (the "Registration Period") continuing until the earlier of (i) the date that is two years after the Closing Date (ii) the date when the Investor Investors may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (iiiii) the date the Investor Investors no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit The Company shall permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") Initial Investors to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Furnish to each Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement covering any or all of the whose Registrable Securities or the initiation of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company makes any statement made are included 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 and its legal counsel identified to the Registration StatementCompany, 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(fe) As promptly as practicable after becoming aware thereofof such event, notify the each Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;
(f) As promptly as practicable after becoming aware of such event, notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of a Notice of Effectiveness or any notice of effectiveness or any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time;
(g) [intentionally omitted ]Notwithstanding the foregoing, if at any time or from time to time after the date of effectiveness of the Registration Statement, the Company notifies the Investors in writing of the existence of a Potential Material Event, the Investors shall not offer or sell any Registrable Shares, or engage in any other transaction involving or relating to the Registrable Shares, from the time of the giving of notice with respect to a Potential Material Event until such Investor receives written notice from the Company that such Potential Material Event either has been disclosed to the public or no longer constitutes a Potential Material Event; provided, however, that the Company may not so suspend the right to such holders of Registrable Shares for more than two twenty (20) day period in the aggregate during any 12-month period ("Suspension Period") with at least a ten (10) business day interval between such periods, during the periods the Registration Statement is required to be in effect;
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(ki) Cooperate with the Investor Investors who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor Investors may reasonably request, and, within five three (53) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such Registration Statement) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(lj) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Galvestons Steakhouse Corp), Securities Purchase Agreement (Galvestons Steakhouse Corp), Securities Purchase Agreement (New Frontier Media Inc /Co/)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptly, and file with the SEC by the Required Filing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (ii) the date the Investor no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement as set forth in Section 2 and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the period through the earliest of (i) the date that is five (5) years after the last day of the calendar month following the month in which the Registration Period Statement so filed is declared effective by the SEC, (except during Permitted Suspension Periodsii) the date when the Investors may sell all Registrable Securities under Rule 144, or (iii) the date the Investors no longer own any of the Registrable Securities (The “Registration Period”), and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(cb) Permit The Company shall permit a single firm of legal counsel designated by the Investor Holders’ Representative (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's the “Investors’ Counsel"”) to review drafts of the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel Investors’ Counsel reasonably objects. If the Investors’ Counsel objects, unless the Company reasonably determines that shall take under advisement such document is required by law objections and shall endeavor to be so filedpromptly make such revisions to the Registration Statement (or ancillary documents and/or SEC filings in connection therewith) as are necessary to satisfy the objections of the Investors’ Counsel;
(dc) Notify the Investor Holders’ Representative and the Investor's Counsel Investors’ Counsel, and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three five (35) business days prior to the contemplated date of such filing) and (if requested by any such personthe Holders' Representative) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "“review" ” of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of relating to a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Holders’ Representative and the Investor’s Counsel); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings Proceedings for that purpose; (iv) if at any time the Company has actual knowledge that any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 Proceeding for such purpose; and (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall respond to the SEC in writing to comments on the Registration Statement by the SEC within fifteen (15) business days of the Company’s receipt thereof, plus any additional time reasonably required by the Company’s independent auditors to respond to accounting comments and, if requested by the Holders' Representative and the Investors’ counsel, the Company shall furnish the Investor's Counsel Holders' Representative with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d3(c) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor Holders’ Representative and the Investors’ Counsel shall have the opportunity to comment thereon;
(ed) Furnish to the Investor Holders’ Representative and to Investor's the Investors’ Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus Prospectus and prospectusProspectus, and each amendment or supplement thereto, and (ii) if so requested by any Investor, such number of copies of a prospectusProspectus, and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(fe) As promptly as practicable after becoming aware thereof, notify the Investor Holders’ Representative of the happening of any event of which the Company has actual knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Holders' Representative and each Investor as the such Investor may reasonably request;
(f) As promptly as practicable (and in any event not later than one (1) business day) after becoming aware thereof, notify the Holders’ Representative of the issuance by the SEC of a Notice of Effectiveness or any notice of effectiveness or any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time;
(g) [intentionally omitted ]Notwithstanding the foregoing, if at any time or from time to time after the date of effectiveness of a Registration Statement, the Company notifies the Holders’ Representative in writing of the existence of a Potential Material Event, the Investors shall not offer or sell any Registrable Securities, or engage in any other transaction involving or relating to the Registrable Securities, from the time of the giving of notice with respect to a Potential Material Event until such Investor receives written notice from the Company that such Potential Material Event either has been disclosed to the public or no longer constitutes a Potential Material Event; provided, however, that the Company may not so suspend the right to such Holders of Registrable Securities for more than two twenty (20) business day periods in the aggregate during any 12-month period ("Suspension Period") with at least a ten (10) business day interval between such periods, during the periods the Registration Statement is required to be in effect;
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading NASDAQ/National Market System or the "OTC Bulletin Board Market" or any successor thereto of the National Association of Securities Dealers Automated Quotations System ("NASDAQ") within the meaning of Rule 11Aa2-1 of the SEC under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the quotation of the Registrable Securities on The NASDAQ National Market System; and further use its efforts to arrange for at least two market makers to register with the Principal Trading MarketNational Association of Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securities;
(ji) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than one (1) business day after the initial Effective Dateeffective date of the Registration Statement;
(kj) Cooperate with the Investor Investors to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor Investors may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such Registration Statement) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and;
(lk) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement;
(l) Not take, or omit to take, any actions that would preclude the filing or effectiveness of the Registration Statement or require the withdrawal of the Registration Statement;
(m) If the Registration Statement has been filed but has not been declared effective by the SEC, not complete any acquisitions or business combinations until the SEC has declared effective the Registration Statement that registers the Registrable Securities.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Interactive Games Inc.), Registration Rights Agreement (Elgrande International, Inc.), Securities Purchase Agreement (Elgrande International, Inc.)
Obligations of the Company. In connection with the any registration of the Registrable SecuritiesSecurities hereunder, the Company shall do each of have the followingfollowing obligations:
(a) Prepare a. The Company shall prepare promptly, and file with the SEC by as soon as practicable after such registration obligation arises hereunder (but in no event later than the Required applicable Filing DateDeadline), a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above), as applicable, and thereafter use its reasonable best efforts to cause each such Registration Statement relating to Registrable Securities to become effective by as soon as possible after such filing, but in any event shall cause each such Registration Statement relating to Registrable Securities to become effective no later than the Required Effective Date Registration Deadline, and shall thereafter keep the Registration Statement current and effective pursuant to Rule 415 at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing times until such date as is the earlier of (i) the date when on which all of the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or included in such Registration Statement have been sold and (ii) the date on which no Investor holds any Registrable Securities (the Investor no longer own any of the Registrable Securities“Registration Period”), which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) ), except for information provided in writing by an Investor pursuant to Section 4(a), shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in light therein not misleading. In the event that Form S-3 is not available for the registration of the circumstances resale of any Registrable Securities hereunder (but, for the avoidance of doubt, without in which they were madeany way affecting the Company’s obligation to register the resale of the Registrable Securities on such other form as is available, not misleading;as provided in Section 2(a)), (i) the Company shall undertake to file, within twenty-five (25) days of such time as such form is available for such registration, a post-effective amendment to the Registration Statement then in effect, or otherwise file a Registration Statement on Form S-3, registering such Registrable Securities on Form S-3; provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement (or post-effective amendment) on Form S-3 covering such Registrable Securities has been declared effective by the SEC, and (ii) the Company shall provide that any Registration Statement on Form S-1 filed hereunder shall incorporate documents by reference (including by way of forward incorporation by reference) to the maximum extent possible.
(bb. Subject to Section 3(q) Prepare hereof, the Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the each Registration Statement and the prospectus used in connection with the each Registration Statement as may be necessary to keep the each Registration Statement current and effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, shall comply with the provisions of the Securities Act applicable to the Company with respect to the disposition of all Registrable Securities covered by the each Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; . In the event that on any Trading Day (Cas defined below) whenever (the Company receives (or a representative “Registration Trigger Date”) the number of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to shares available under the Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements Statements filed pursuant to the Registration Statement or Prospectus or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement covering any or this Agreement is insufficient to cover all of the Registrable Securities issued or the initiation of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 jurisdictionissuable upon conversion of, or otherwise pursuant to, the initiation or threatening of Convertible Notes, without giving effect to any proceeding for such purpose; and (vi) of limitations on the occurrence of any event that Investors’ ability to convert the best knowledge of the Company 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 StatementConvertible Notes, 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 light of the circumstances under which they were made, not misleading. In addition, then the Company shall furnish as soon as practicable, but in any event within twenty (20) days after the Investor's Counsel with copies Registration Trigger Date, amend the Registration Statements, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover the total number of all intended written responses to Registrable Securities so issued or issuable (assuming a Conversion Price (as defined in the comments contemplated in clause (CConvertible Notes) of Seven Dollar ($7.00) (subject to appropriate adjustment for any Stock Event (as defined in the Convertible Notes) that occurs after the date of this Section 3(dAgreement) not later than one (1and without giving effect to any limitations on conversion contained in the Convertible Notes) business day in advance as of the second Trading Day immediately preceding the date of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed amendment or new Registration Statement with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Investor;
(f) As promptly as practicable after becoming aware thereof, notify the Investor of the happening of any event of which the . The Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), shall use its best efforts promptly to prepare a supplement or cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof, but in any event the Company shall cause such amendment and/or new Registration Statement to become effective within sixty (60) days of the Registration Statement Trigger Date or as promptly as practicable in the event the Company is required to increase its authorized shares. “Trading Day” shall mean any day on which the Common Stock is traded for any period on the NASDAQ Global Market (the “NasdaqGM”), or if not the NasdaqGM, the principal securities exchange or other appropriate filing with securities market on which the SEC to correct such untrue statement or omissionCommon Stock is then being traded. For purposes of the foregoing provision, and deliver a the number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after shares available under a Registration Statement which includes shall be deemed “insufficient to cover all Registrable Securities” specified above if as of any date of determination (A) the number of shares of Common Stock equal to the sum of (x) the total number of Conversion Shares so issued or issuable (assuming a Conversion Price of Seven Dollar ($7.00) (subject to appropriate adjustment for any Stock Event that occurs after the date of this Agreement) and without giving effect to any limitations on conversion contained in the Convertible Notes) plus (y) the number of shares of Common Stock otherwise beneficially owned by the Investors that remain Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion as of such counsel, which date of determination is greater than (B) the number of shares of Common Stock available for resale under such Registration Statement. The foregoing calculations shall include, be made without limitation, directions regard to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor any limitations on conversion of the Registrable Securities pursuant to the Registration StatementConvertible Notes.
Appears in 3 contracts
Samples: Facility Agreement, Facility Agreement (Neos Therapeutics, Inc.), Registration Rights Agreement (Neos Therapeutics, Inc.)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(aA) Prepare promptly, Promptly (i) prepare and file with the SEC by Commission such amendments (including post-effective amendments) to the Required Filing Date, a Registration Statement with respect and supplements to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts Prospectus as may be necessary to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement continuously effective at and in compliance with the provisions of the Securities Act applicable thereto so as to permit the Prospectus forming part thereof to be current and useable by Holders for resales of the Registrable Securities for a period of one (1) year from the date on which the Registration Statement is first declared effective by the Commission (the "Effective Time") or such shorter period that will terminate when all timesthe Registrable Securities covered by the Registration Statement have been sold pursuant thereto in accordance with the plan of distribution provided in the Prospectus, other than during Permitted Suspension Periods, during transferred pursuant to Rule 144 under the period Securities Act or otherwise transferred in a manner that results in the delivery of new securities not subject to transfer restrictions under the Securities Act (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or and (ii) take all lawful action such that each of (A) the date Registration Statement and any amendment thereto does not, when it becomes effective, 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 Investor no longer own any statements therein, not misleading and (B) the Prospectus forming part of the Registrable SecuritiesRegistration Statement, which and any amendment or supplement thereto, does not at any time during the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any Period 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, in light of the circumstances in under which they were made, not misleading;
(bB) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during During the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Holders as set forth in the Prospectus forming part of the Registration Statement;
(ci) Permit Prior to the filing with the Commission of any Registration Statement (including any amendments thereto) and the distribution or delivery of any Prospectus (including any supplements thereto), provide (A) draft copies thereof to the Holders and reflect in such documents all such comments as the Holders (and their counsel) reasonably may propose and (B) to the Holders a single firm copy of counsel designated by the Investor (which, until further notice, shall be deemed accountant's consent letter to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested included in the filing and (ii) furnish to receive such notification; each, an "Investor's Counsel") to review each Holder whose Registrable Securities are included in the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such its legal counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment identified to the Registration Statement is proposed to be filed; Company, (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (iA) promptly after the same is prepared and publicly distributed, filed with the SECCommission, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectusProspectus, and each amendment or supplement thereto, thereto and (iiB) such number of copies of a prospectus, the Prospectus and all amendments and supplements thereto and such other documents, as the Investor such Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Investorsuch Holder;
(fi) Register or qualify the Registrable Securities covered by the Registration Statement under such securities or "blue sky" laws of such jurisdictions as the Holders who hold a majority-in-interest of the Registrable Securities being offered reasonably request, (ii) prepare and file in such jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take all such other lawful actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period and (iv) take all such other lawful actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(D), (B) subject itself to general taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(E) As promptly as practicable after becoming aware thereofof such event, notify the Investor each Holder of the happening occurrence of any event of which the Company has knowledgeevent, as a result of which the prospectus Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts and promptly to prepare a supplement or an amendment to the Registration Statement or other appropriate filing with and supplement to the SEC Prospectus to correct such untrue statement or omission, and deliver a number of copies of such supplement or and amendment to the Investor each Holder as the Investor such Holder may reasonably request;
(gF) [intentionally omitted ]
As promptly as practicable after becoming aware of such event, notify each Holder who holds Registrable Securities being sold (hor, in the event of an underwritten offering, the managing underwriters) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoingissuance by the Commission of any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time and take all lawful action to effect the withdrawal, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Companyrecession or removal of such stop order or other suspension;
(iG) Use its reasonable efforts to secure and maintain the designation of Cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Market principal national securities exchange, and the included in an inter-dealer quotation system of a registered national securities association, on or in which securities of the Registrable Securities on same class or series issued by the Principal Trading MarketCompany are then listed or included;
(jH) Provide Maintain a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(kI) Cooperate with the Investor Holders who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement registration statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investor Holders reasonably may reasonably request and registered in such names as the Holder may request, ; and, within five three (53) business days after a Registration Statement registration statement which includes Registrable Securities is ordered declared effective by the SECCommission, the Company shall deliver, deliver and shall cause legal counsel selected by the Company to deliver, deliver to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorHolders whose Registrable Securities are included in such registration statement) an appropriate instruction and and, to the extent necessary, an opinion of such counsel;
(J) Take all such other lawful actions reasonably necessary to expedite and facilitate the disposition by the Holders of their Registrable Securities in accordance with the intended methods therefor provided in the Prospectus which are customary under the circumstances;
(K) Make generally available to its security holders as soon as practicable, but in any event not later than three (3) months after (i) the effective date (as defined in Rule 158(c) under the Securities Act) of the Registration Statement and (ii) the effective date of each post-effective amendment to the Registration Statement, as the case may be, an earnings statement of the Company and its subsidiaries complying with Section 11 (a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(L) In the event of an underwritten offering, promptly include or incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the managers reasonably agree should be included therein and to which the Company does not reasonably object and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after it is notified of the matters to be included or incorporated in such Prospectus supplement or post-effective amendment;
(i) Make reasonably available for inspection by the Holders, any underwriter participating in any disposition pursuant to the Registration Statement, and any attorney, accountant or other agent retained by such Holders or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and (ii) cause the Company's officers, directors and employees to supply all information reasonably requested by such Holders or any such underwriter, attorney, accountant or agent in connection with the Registration Statement, in each case, as is customary for similar due diligence examinations; provided, however, that all records, information and documents that are designated in writing by the Company, in good faith, as confidential, proprietary or containing any material nonpublic information shall be kept confidential and shall not be used as a basis for any market transactions in the securities of the Company by such Holders and any such underwriter, attorney, accountant or agent (pursuant to an appropriate confidentiality agreement in the case of any such holder or agent), unless such disclosure is made pursuant to judicial process in a court proceeding (after first giving the Company an opportunity promptly to seek a protective order or otherwise limit the scope of the information sought to be disclosed) or is required by law, or such records, information or documents become available to the public generally or through a third party not in violation of an accompanying obligation of confidentiality; and provided, further, that, if the foregoing inspection and information gathering would otherwise disrupt the Company's conduct of its business, such inspection and information gathering shall, to the maximum extent possible, be coordinated on behalf of the Holders and the other parties entitled thereto by one firm of counsel designed by and on behalf of the majority in interest of Holders and other parties;
(N) In connection with any underwritten offering, make such representations and warranties to the Holders participating in such underwritten offering and to the managers, in form, substance and scope as are customarily made by the Company to underwriters in secondary underwritten offerings;
(O) In connection with any underwritten offering, obtain opinions of counsel to the Company (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managers) addressed to the underwriters, covering such matters as are customarily covered in opinions requested in secondary underwritten offerings (it being agreed that the matters to be covered by such opinions shall include, without limitation, directions to as of the Transfer Agent to issue certificates date of Registrable Securities (the opinion and as of the Effective Time of the Registration Statement or most recent post-effective amendment thereto, as the case may be, the absence from the Registration Statement and the Prospectus, including certificates for Registrable Securities any documents incorporated by reference therein, of an untrue statement of a material fact or the omission of a material fact required to be issued after stated therein or necessary to make the Effective Date and replacement certificates for Registrable Securities previously issuedstatements therein (in the case of the Prospectus, in light of the circumstances under which they were made) without legends or other restrictionsnot misleading, subject to compliance customary limitations);
(P) In connection with applicable lawany underwritten offering, obtain "cold comfort" letters and updates thereof from the independent public accountants of the Company (and, if necessary, from the independent public accountants of any subsidiary of the Company or of any business acquired by the Company, in each case for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each underwriter participating in such underwritten offering (if such underwriter has provided such letter, representations or documentation, if any, required for such cold comfort letter to be so addressed), in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with secondary underwritten offerings;
(Q) In connection with any underwritten offering, deliver such documents and certificates as may be reasonably required by the managers, if any, and
(R) In the event that any broker-dealer registered under the Exchange Act shall be an "Affiliate" (as defined in Rule 2729(b)(1) of the rules and regulations of the National Association of Securities Dealers, Inc. (the "NASD Rules") (or any successor provision thereto)) of the Company or has a "conflict of interest" (as defined in Rule 2720(b)(7) of the NASD Rules (or any successor provision thereto)) and such broker-dealer shall underwrite, participate as a member of an underwriting syndicate or selling group or assist in the distribution of any Registrable Securities covered by the Registration Statement, whether as a holder of such Registrable Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company shall assist such broker-dealer in complying with the requirements of the NASD Rules, including, without limitation, prospectus delivery requirements; and
by (lA) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor engaging a "qualified independent underwriter" (as defined in Rule 2720(b)(15) of the NASD Rules (or any successor provision thereto)) to participate in the preparation of the Registration Statement relating to such Registrable Securities pursuant Securities, to exercise usual standards of due diligence in respect thereof and to recommend the public offering price of such Registrable Securities, (B) indemnifying such qualified independent underwriter to the Registration Statementextent of the indemnification of underwriters provided in Section 6 hereof and (C) providing such information to such broker-dealer as may be required in order for such broker-dealer to comply with the requirements of the NASD Rules.
Appears in 3 contracts
Samples: Registration Rights Agreement (Savon Team Sports Inc), Registration Rights Agreement (Soyo Group Inc), Registration Rights Agreement (Worldwater Corp)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptly, and file with the SEC by the Required Filing Date, Date a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, times during the period (the "“Registration Period"”) continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (ii) the date the Investor no longer own owns any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Bxxxxxx Xxxxxxx Xxxxxxx & Xxxxxx LLPDeere, P.C., Attn: Xxxxxx Xxxxxxx, Esq.Jxxxxxxx X. Xxxxxx, which firm has requested to receive such notification; each, an "“Investor's ’s Counsel"”) to review the Registration Statement and all amendments and supplements thereto within a reasonable period of time (but not less than three (3) business trading days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's ’s Counsel and any managing underwriters immediately (and, in the case of clause (i)(A) below, not less than three (3) business trading days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business trading day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "“review" ” of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the InvestorInvestors); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish communicate with the Investor's ’s Counsel with copies of all intended regard to its proposed written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of ), so that, to the filing of such responses with extent practicable, the SEC so that the Investor Investors shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's ’s Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Investor;
(f) As promptly as practicable after becoming aware thereof, notify the Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;
(g) [intentionally omitted ]As promptly as practicable after becoming aware thereof, notify the Investor of the issuance by the SEC of a Notice of Effectiveness or any notice of effectiveness or any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time;
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Notwithstanding the foregoing, if at any time or from time to time after the date of effectiveness of the Registration Statement, the Company notifies the Investor in writing that the effectiveness of the Registration Statement is suspended for any reason, whether due to a Potential Material Event or otherwise, the Investor shall not offer or sell any Registrable Securities, or engage in any other transaction involving or relating to the Registrable Securities, from the time of the giving of such notice until the Investor receives written notice from the Company that such the effectiveness of the Registration Statement has been restored, whether because the Potential Material Event has been disclosed to the public or it no longer constitutes a Potential Material Event or otherwise; provided, however, that the Company may not so suspend the right to such holders of Registrable Securities during the periods the Registration Statement is required to be in effect other than during a Permitted Suspension Period (and the applicable provisions of Section 2(b) shall apply with respect to any such suspension other than during a Permitted Suspension Period);
(j) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(jk) Provide a transfer agent ("“Transfer Agent"”) and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(kl) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business trading days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable lawlaw and other rules and regulations, including, without limitation, prospectus delivery requirements; and;
(lm) Take all other reasonable administrative steps and actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement; provided, however, that the foregoing does not require that the Company take any steps whatsoever regarding the identification or selection of a broker to sell the Registrable Securities, the identification of buyers of the Registrable Securities, or the negotiation of the sale terms of the Registrable Securities; and
(n) Not file any other registration statement (other than the Registration Statement and amendments thereto) during the period commencing on the Closing Date and ending on the Effective Date.
Appears in 3 contracts
Samples: Registration Rights Agreement (RADIENT PHARMACEUTICALS Corp), Registration Rights Agreement (RADIENT PHARMACEUTICALS Corp), Registration Rights Agreement (Amdl Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:.
(a) Prepare promptly, and file with the SEC by as soon as possible after the Required Filing Closing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such the Registration Statement relating to Registrable Securities to become effective not later than five (5) days after the Company is notified by the Required Effective Date SEC that the Registration Statement may be declared effective and keep the Registration Statement effective pursuant to Rule 415 at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing times until the earlier earliest of (i) the date that is one (1) year after the Closing Date (ii) the date when the Investor Investors may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (iiiii) the date the Investor Investors no longer own any of the Registrable SecuritiesSecurities (the "Registration Period"), which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;.
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;.
(c) Permit a single firm of counsel designated by the Furnish to each Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review whose Registrable Securities are included in the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such its legal counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment identified to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies orCompany, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(fd) Use reasonable efforts to (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or blue sky laws of such jurisdictions as the Investors who hold a majority in interest of the Registrable Securities being offered reasonably request and in which significant volumes of shares of Common Stock are traded, (ii) prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (B) subject itself to general taxation in any such jurisdiction, (C) file a general consent to service of process in any such jurisdiction, (D) provide any undertakings that cause more than nominal expense or burden to the Company or (E) make any change in its certificate of incorporation or by-laws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders;
(e) As promptly as practicable after becoming aware thereofof such event, notify the each Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;
(gf) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination As promptly as practicable after becoming aware of information regarding the Companysuch event, and in furtherance notify each Investor who holds Registrable Securities being sold of the foregoing, and not in limitation thereof, not disclose to issuance by the Investor SEC of any non-public material information regarding stop order or other suspension of the Companyeffectiveness of the Registration Statement;
(g) Upon effectiveness of registration, and upon receipt of an Exercise Notice in the form annexed hereto as Exhibit A, the Company shall (i) Use its reasonable efforts instruct the transfer agent to secure and maintain the designation of remove all restrictive legends from the Registrable Securities covered by Securities; (ii) instruct the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of issue certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor Buyer may reasonably request and registered in such names as the Buyer may request, and, within five ; and (5iii) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; andremove any stop transfer order instructions.
(lh) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement.
Appears in 3 contracts
Samples: Registration Rights Agreement (Frontline Communications Corp), Registration Rights Agreement (Frontline Communications Corp), Registration Rights Agreement (Frontline Communications Corp)
Obligations of the Company. In connection with the any registration of the Registrable SecuritiesSecurities hereunder, the Company shall do each of have the followingfollowing obligations:
(a) Prepare a. The Company shall prepare promptly, and file with the SEC by as soon as practicable after such registration obligation arises hereunder (but in no event later than the Required applicable Filing DateDeadline), a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above), as applicable, and thereafter use its reasonable best efforts to cause each such Registration Statement relating to Registrable Securities to become effective by as soon as possible after such filing, but in any event shall use its reasonable best efforts to cause each such Registration Statement relating to Registrable Securities to become effective no later than the Required Effective Date Registration Deadline, and shall thereafter use its reasonable best efforts to keep the Registration Statement current and effective pursuant to Rule 415 at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing times until such date as is the earlier of (i) the date when on which all of the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or included in such Registration Statement have been sold and (ii) assuming all of the Warrants will be exercised pursuant to Cash Exercises (as defined in the Warrants), the date the Investor no longer own any on which all of the Registrable SecuritiesSecurities included in such Registration Statement (in the opinion of counsel to the Investors) may be immediately sold to the public without registration or restriction (including without limitation as to volume by each holder thereof), and without compliance with any “current public information” requirement, pursuant to Rule 144 under the Securities Act (the “Registration Period”), which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) ), except for information provided in writing by an Investor pursuant to Section 4(a), shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in light therein not misleading. In the event that Form S-3 is not available for the Registration of the circumstances resale of any Registrable Securities hereunder (but, for the avoidance of doubt, without in which they were madeany way affecting the Company’s obligation to register the resale of the Registrable Securities on such other form as is available, not misleading;as provided in Section 2(a)), (i) the Company shall undertake to file, within twenty (20) days of such time as such form is available for such Registration, a post-effective amendment to the Registration Statement then in effect, or otherwise file a Registration Statement on Form S-3, registering such Registrable Securities on Form S-3; provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement (or post-effective amendment) on Form S-3 covering such Registrable Securities has been declared effective by the SEC, and (ii) the Company shall provide that any Registration Statement on Form S-1 filed hereunder shall incorporate documents by reference (including by way of forward incorporation by reference) to the maximum extent possible.
(b) Prepare b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the each Registration Statement and the prospectus used in connection with the each Registration Statement as may be necessary to keep the each Registration Statement current and effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, shall comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the each Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; . In the event that on any Trading Day (Cas defined below) whenever (the Company receives (or a representative “Registration Trigger Date”) the number of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to shares available under the Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements Statements filed pursuant to the Registration Statement or Prospectus or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement covering any or this Agreement is insufficient to cover all of the Registrable Securities issued or issuable upon exercise of or otherwise pursuant to the initiation Warrants, including any additional shares of Common Stock issued in connection with any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company anti-dilution provisions contained in the Warrants, without giving effect to any agreement (including any underwriting agreement) contemplated hereby ceases limitations on the Investors’ ability to be true and correct in all material respects; (v) of exercise the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In additionWarrants, the Company shall furnish amend the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SECRegistration Statements, or received by file a new Registration Statement (on the Companyshort form available therefor, one if applicable), or both, so as to cover the total number of Registrable Securities so issued or issuable (1without giving effect to any limitations on exercise contained in the Warrants) copy as of the Registration StatementTrigger Date as soon as practicable, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the Investor may reasonably request but in order to facilitate the disposition of the Registrable Securities owned by the Investor;
(f) As promptly as practicable after becoming aware thereof, notify the Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in within twenty (20) days after the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), Trigger Date. The Company shall use its best efforts promptly to prepare a supplement or cause such amendment to the and/or new Registration Statement or other appropriate to become effective as soon as practicable following the filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor but in any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, event the Company shall deliver, and shall cause legal counsel selected by such amendment and/or new Registration Statement to become effective within sixty (60) days of the Registration Trigger Date or as promptly as practicable in the event the Company is required to deliverincrease its authorized shares. “Trading Day” shall mean any day on which the Common Stock is traded for any period on the New York Stock Exchange (the “NYSE”), to or if not the Transfer Agent for NYSE, the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends principal securities exchange or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by securities market on which the Investor of the Registrable Securities pursuant to the Registration StatementCommon Stock is then being traded.
Appears in 3 contracts
Samples: Registration Rights Agreement (Lannett Co Inc), Exchange Agreement (Lannett Co Inc), Exchange Agreement (Lannett Co Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(a) Prepare promptly, Promptly (i) prepare and file with the SEC by Commission such amendments (including post-effective amendments) to the Required Filing Date, a Registration Statement with respect and supplements to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts Prospectus as may be necessary to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement continuously effective at and in compliance with the provisions of the Securities Act applicable thereto so as to permit the Prospectus forming part thereof to be current and useable by Investors for resales of the Registrable Securities for a period of one year (such period to be extended by a period equal to any change in the Mandatory Conversion Date (as defined in the Certificate of Designations) from the date on which the Registration Statement is first declared effective by the Commission (the "Effective Time") or such shorter period that will terminate when all timesthe Registrable Securities covered by the Registration Statement have been sold pursuant thereto in accordance with the plan of distribution provided in the Prospectus, other than during Permitted Suspension Periods, during capable of being transferred pursuant to Rule 144 under the period Securities Act or otherwise transferred in a manner that results in the delivery of new securities not subject to transfer restrictions under the Securities Act (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or and (ii) take all lawful action such that each of (A) the date the Investor no longer own any of the Registrable Securities, which Registration Statement (including and any amendments or supplements amendment thereto and prospectuses contained therein) shall not does not, when it becomes effective, contain any 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, in light of the circumstances in under which they were made, not misleading;
misleading and (bB) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to Prospectus forming part of the Registration Statement Statement, and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective any amendment or supplement thereto, does not at all times any time during the Registration Period (except during Permitted Suspension Periods), and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, include an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In additionNotwithstanding the foregoing provisions of this Section 3(a), the Company may, during the Registration Period, suspend the use of the Prospectus for a period not to exceed 20 days (whether or not consecutive) in any 12-month period if the Board of Directors of the Company determines in good faith that because of pending mergers or other business combination transactions, the planned acquisition or divestiture of assets, pending material corporate developments and similar events, it is in the best interests of the Company to suspend such use, and prior to or contemporaneously with suspending such use, the Company provides the Investors with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. At the end of any such suspension period, the Company shall furnish provide the Investor's Counsel Investors with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance notice of the filing termination of such responses with the SEC so that the Investor shall have the opportunity to comment thereonsuspension;
(eb) Furnish During the Registration Period, comply with the provisions of the Securities Act with respect to the Investor and to Investor's Counsel Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the Investors as set forth in the Prospectus forming part of the Registration Statement or are no longer Registrable Securities;
(i) Prior to the filing with the Commission of any Registration Statement (including any amendments thereto) and the distribution or delivery of any Prospectus (including any supplements thereto), provide draft copies thereof to the Investors and reflect in such documents all such comments as the Investors (and their counsel) reasonably may propose with regard to Holder ownership and the Plan of Distribution included therein and (ii) furnish to each Investor whose Registrable Securities are included in the Registration Statement and its legal counsel identified to the Company, (A) promptly after the same is prepared and publicly distributed, filed with the SECCommission, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectusProspectus, and each amendment or supplement thereto, and (iiB) such number of copies of a prospectus, the Prospectus and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(fi) Register or qualify the Registrable Securities covered by the Registration Statement under such securities or "blue sky" laws of such jurisdictions as the Investors who hold a majority-in-interest of the Registrable Securities being offered reasonably request, (ii) prepare and file in such jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take all such other lawful actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all such other lawful actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d),(B) subject itself to general taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(e) As promptly as practicable after becoming aware thereofof such event, notify the each Investor of the happening occurrence of any event of which the Company has knowledgeevent, as a result of which the prospectus Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts and promptly to prepare a supplement or an amendment to the Registration Statement or other appropriate filing with and supplement to the SEC Prospectus to correct such untrue statement or omission, and deliver a number of copies of such supplement or and amendment to the each Investor as the such Investor may reasonably request;
(gf) [intentionally omitted ]
As promptly as practicable after becoming aware of such event, notify each Investor who holds Registrable Securities being sold (hor, in the event of an underwritten offering, the managing underwriters) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoingissuance by the Commission of any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time and take all lawful action to effect the withdrawal, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Companyrecession or removal of such stop order or other suspension;
(ig) Use its reasonable efforts to secure and maintain the designation of Cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Market principal national securities exchange, and the included in an inter-dealer quotation system of a registered national securities association, on or in which securities of the Registrable Securities on same class or series issued by the Principal Trading MarketCompany are then listed or included;
(jh) Provide Maintain a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(ki) Cooperate with the Investor Investors who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investors reasonably may request and registered in such names as the Investor may reasonably request, ; and, within five (5) three business days after a Registration Statement which includes Registrable Securities is ordered declared effective by the SECCommission, the Company shall deliver, deliver and shall cause legal counsel selected by the Company to deliver, deliver to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such Registration Statement) an appropriate instruction and and, to the extent necessary, an opinion of such counsel;
(j) Take all such other lawful actions reasonably necessary to expedite and facilitate the disposition by the Investors of their Registrable Securities in accordance with the intended methods therefor provided in the Prospectus which are customary under the circumstances;
(k) If required, which shall includemake generally available to its security holders as soon as practicable (including, without limitation, directions by means of a filing with the Commission), but in any event not later than 18 months after (i) the effective date (as defined in Rule 158(c) under the Securities Act) of the Registration Statement, and (ii) the effective date of each post-effective amendment to the Transfer Agent Registration Statement, as the case may be, an earnings statement of the Company and its subsidiaries complying with Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(1) In the event of an underwritten offering, promptly include or incorporate in a Prospectus supplement or post-effective amendment to issue the Registration Statement such information as the managers reasonably agree should be included therein and to which the Company does not reasonably object and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after it is notified of the matters to be included or incorporated in such Prospectus supplement or post-effective amendment;
(m) Enter into such customary agreements (including an underwriting agreement in customary form in the event of an underwritten offering) and take such other lawful and reasonable action to expedite and facilitate the registration and disposition of the Registrable Securities, and in connection therewith, if an underwriting agreement is entered into, use its best efforts to cause the same to contain indemnification provisions and procedures substantially identical to those set forth in this Agreement;
(i) Make reasonably available for inspection by Investors, any underwriter participating in any disposition pursuant to the Registration Statement, and any attorney, accountant or other agent retained by such Investors or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and (ii) cause the Company's officers, directors and employees to supply all information reasonably requested by such Investors or any such underwriter, attorney, accountant or agent in connection with the Registration Statement, in each case, as is customary for similar due diligence examinations; provided, however, that all records, information and documents that are designated in writing by the Company, in good faith, as confidential, proprietary or containing any material nonpublic information shall be kept confidential by such Investors and any such underwriter, attorney, accountant or agent (pursuant to an appropriate confidentiality agreement in the case of any such holder or agent), unless such disclosure is made pursuant to judicial process in a court proceeding (after first giving the Company an opportunity promptly to seek a protective order or otherwise limit the scope of the information sought to be disclosed) or is required by law, or such records, information or documents become available to the public generally or through a third party not in violation of an accompanying obligation of confidentiality; and provided further that, if the foregoing inspection and information gathering would otherwise disrupt the Company's conduct of its business, such inspection and information gathering shall, to the maximum extent possible, be coordinated on behalf of the Investors and the other parties entitled thereto by one firm of counsel designed by and on behalf of the majority in interest of Investors and other parties;
(o) In connection with any underwritten offering, make such representations and warranties to the Investors participating in such underwritten offering and to the managers, in form, substance and scope as are customarily made by the Company to underwriters in secondary underwritten offerings;
(p) In connection with any underwritten offering, obtain opinions of counsel to the Company (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managers) addressed to the underwriters, covering such matters as are customarily covered in opinions requested in secondary underwritten offerings;
(q) In connection with any underwritten offering, obtain "cold comfort" letters and updates thereof from the independent public accountants of the Company (and, if necessary, from the independent public accountants of any subsidiary of the Company or of any business acquired by the Company, in each case for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each underwriter participating in such underwritten offering (if such underwriter has provided such letter, representations or documentation, if any, required for such cold comfort letter to be so addressed), in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with secondary underwritten offerings;
(r) In connection with any underwritten offering, deliver such documents and certificates as may be reasonably required by the managers, if any; and
(s) In the event that any broker-dealer registered under the Exchange Act shall be an "Affiliate" (as defined in Rule 2729(b)(1) of the rules and regulations of the National Association of Securities Dealers, Inc. (the "NASD Rules") (or any successor provision thereto)) of the Company or has a "conflict of interest" (as defined in Rule 2720(b)(7) of the NASD Rules (or any successor provision thereto)) and such broker-dealer shall underwrite, participate as a member of an underwriting syndicate or selling group or assist in the distribution of any Registrable Securities (including certificates for covered by the Registration Statement, whether as a holder of such Registrable Securities to be issued after or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance Company shall assist such broker-dealer in complying with applicable lawthe requirements of the NASD Rules, including, without limitation, prospectus delivery requirements; and
by (lA) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor engaging a "qualified independent underwriter" (as defined in Rule 2720(b)(15) of the NASD Rules (or any successor provision thereto)) to participate in the preparation of the Registration Statement relating to such Registrable Securities pursuant Securities, to exercise usual standards of due diligence in respect thereof and to recommend the public offering price of such Registrable Securities, (B) indemnifying such qualified independent underwriter to the Registration Statementextent of the indemnification of underwriters provided in Section 5 hereof, and (C) providing such information to such broker-dealer as may be required in order for such broker-dealer to comply with the requirements of the NASD Rules.
Appears in 3 contracts
Samples: Registration Rights Agreement (Diamond Entertainment Corp), Registration Rights Agreement (Diamond Entertainment Corp), Registration Rights Agreement (Diamond Entertainment Corp)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(aA) Prepare promptly, Promptly (i) prepare and file with the SEC by Commission such amendments (including post-effective amendments) to the Required Filing Date, a Registration Statement with respect and supplements to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts Prospectus as may be necessary to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement continuously effective at and in compliance with the provisions of the Securities Act applicable thereto so as to permit the Prospectus forming part thereof to be current and useable by Investors for resales of the Registrable Securities for a period of five (5) years from the date on which the Registration Statement is first declared effective by the Commission (the "Effective Time") or such shorter period that will terminate when all timesthe Registrable Securities covered by the Registration Statement have been sold pursuant thereto in accordance with the plan of distribution provided in the Prospectus, other than during Permitted Suspension Periods, during transferred pursuant to Rule 144 under the period Securities Act or otherwise transferred in a manner that results in the delivery of new securities not subject to transfer restrictions under the Securities Act (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or and (ii) take all lawful action such that each of (A) the date Registration Statement and any amendment thereto does not, when it becomes effective, 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 Investor no longer own any statements therein, not misleading and (B) the Prospectus forming part of the Registrable SecuritiesRegistration Statement, which and any amendment or supplement thereto, does not at any time during the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any Period 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, in light of the circumstances in under which they were made, not misleading;
(bB) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during During the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Investors as set forth in the Prospectus forming part of the Registration Statement;
(ci) Permit Prior to the filing with the Commission of any Registration Statement (including any amendments thereto) and the distribution or delivery of any Prospectus (including any supplements thereto), provide (A) draft copies thereof to the Investors and reflect in such documents all such comments as the Investors (and their counsel) reasonably may propose and (B) to the Investors a single firm copy of counsel designated by the Investor (which, until further notice, shall be deemed accountant's consent letter to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested included in the filing and (ii) furnish to receive such notification; each, an "Investor's Counsel") to review each Investor whose Registrable Securities are included in the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such its legal counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment identified to the Registration Statement is proposed to be filed; Company, (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (iA) promptly after the same is prepared and publicly distributed, filed with the SECCommission, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectusProspectus, and each amendment or supplement thereto, thereto and (iiB) such number of copies of a prospectus, the Prospectus and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(fD) (i) Register or qualify the Registrable Securities covered by the Registration Statement under such securities or "blue sky" laws of such jurisdictions as the Investors who hold a majority-in-interest of the Registrable Securities being offered reasonably request, (ii) prepare and file in such jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take all such other lawful actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period and (iv) take all such other lawful actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(D), (B) subject itself to general taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(E) As promptly as practicable after becoming aware thereofof such event, notify the each Investor of the happening occurrence of any event of which the Company has knowledgeevent, as a result of which the prospectus Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts and promptly to prepare a supplement or an amendment to the Registration Statement or other appropriate filing with and supplement to the SEC Prospectus to correct such untrue statement or omission, and deliver a number of copies of such supplement or and amendment to the each Investor as the such Investor may reasonably request;
(gF) [intentionally omitted ]
As promptly as practicable after becoming aware of such event, notify each Investor who holds Registrable Securities being sold (hor, in the event of an underwritten offering, the managing underwriters) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoingissuance by the Commission of any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time and take all lawful action to effect the withdrawal, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Companyrecession or removal of such stop order or other suspension;
(iG) Use its reasonable efforts to secure and maintain the designation of Cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Market principal national securities exchange, and the included in an inter-dealer quotation system of a registered national securities association, on or in which securities of the Registrable Securities on same class or series issued by the Principal Trading MarketCompany are then listed or included;
(jH) Provide Maintain a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(kI) Cooperate with the Investor Investors who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement registration statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investors reasonably may request and registered in such names as the Investor may reasonably request, ; and, within five three (53) business days after a Registration Statement registration statement which includes Registrable Securities is ordered declared effective by the SECCommission, the Company shall deliver, deliver and shall cause legal counsel selected by the Company to deliver, deliver to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such registration statement) an appropriate instruction and and, to the extent necessary, an opinion of such counsel;
(J) Take all such other lawful actions reasonably necessary to expedite and facilitate the disposition by the Investors of their Registrable Securities in accordance with the intended methods therefor provided in the Prospectus which are customary under the circumstances;
(K) Make generally available to its security holders as soon as practicable, but in any event not later than three (3) months after (i) the effective date (as defined in Rule 158(c) under the Securities Act) of the Registration Statement and (ii) the effective date of each post-effective amendment to the Registration Statement, as the case may be, an earnings statement of the Company and its subsidiaries complying with Section 11 (a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(L) In the event of an underwritten offering, promptly include or incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the managers reasonably agree should be included therein and to which the Company does not reasonably object and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after it is notified of the matters to be included or incorporated in such Prospectus supplement or post-effective amendment;
(i) Make reasonably available for inspection by Investors, any underwriter participating in any disposition pursuant to the Registration Statement, and any attorney, accountant or other agent retained by such Investors or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and (ii) cause the Company's officers, directors and employees to supply all information reasonably requested by such Investors or any such underwriter, attorney, accountant or agent in connection with the Registration Statement, in each case, as is customary for similar due diligence examinations; provided, however, that all records, information and documents that are designated in writing by the Company, in good faith, as confidential, proprietary or containing any material nonpublic information shall be kept confidential by such Investors and any such underwriter, attorney, accountant or agent (pursuant to an appropriate confidentiality agreement in the case of any such holder or agent), unless such disclosure is made pursuant to judicial process in a court proceeding (after first giving the Company an opportunity promptly to seek a protective order or otherwise limit the scope of the information sought to be disclosed) or is required by law, or such records, information or documents become available to the public generally or through a third party not in violation of an accompanying obligation of confidentiality; and provided, further, that, if the foregoing inspection and information gathering would otherwise disrupt the Company's conduct of its business, such inspection and information gathering shall, to the maximum extent possible, be coordinated on behalf of the Investors and the other parties entitled thereto by one firm of counsel designed by and on behalf of the majority in interest of Investors and other parties;
(N) In connection with any underwritten offering, make such representations and warranties to the Investors participating in such underwritten offering and to the managers, in form, substance and scope as are customarily made by the Company to underwriters in secondary underwritten offerings;
(O) In connection with any underwritten offering, obtain opinions of counsel to the Company (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managers) addressed to the underwriters, covering such matters as are customarily covered in opinions requested in secondary underwritten offerings (it being agreed that the matters to be covered by such opinions shall include, without limitation, directions to as of the Transfer Agent to issue certificates date of Registrable Securities (the opinion and as of the Effective Time of the Registration Statement or most recent post-effective amendment thereto, as the case may be, the absence from the Registration Statement and the Prospectus, including certificates for Registrable Securities any documents incorporated by reference therein, of an untrue statement of a material fact or the omission of a material fact required to be issued after stated therein or necessary to make the Effective Date and replacement certificates for Registrable Securities previously issuedstatements therein (in the case of the Prospectus, in light of the circumstances under which they were made) without legends or other restrictionsnot misleading, subject to compliance customary limitations);
(P) In connection with applicable lawany underwritten offering, obtain "cold comfort" letters and updates thereof from the independent public accountants of the Company (and, if necessary, from the independent public accountants of any subsidiary of the Company or of any business acquired by the Company, in each case for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each underwriter participating in such underwritten offering (if such underwriter has provided such letter, representations or documentation, if any, required for such cold comfort letter to be so addressed), in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with secondary underwritten offerings;
(Q) In connection with any underwritten offering, deliver such documents and certificates as may be reasonably required by the managers, if any, and
(R) In the event that any broker-dealer registered under the Exchange Act shall be an "Affiliate" (as defined in Rule 2729(b)(1) of the rules and regulations of the National Association of Securities Dealers, Inc. (the "NASD Rules") (or any successor provision thereto)) of the Company or has a "conflict of interest" (as defined in Rule 2720(b)(7) of the NASD Rules (or any successor provision thereto)) and such broker-dealer shall underwrite, participate as a member of an underwriting syndicate or selling group or assist in the distribution of any Registrable Securities covered by the Registration Statement, whether as a holder of such Registrable Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company shall assist such broker-dealer in complying with the requirements of the NASD Rules, including, without limitation, prospectus delivery requirements; and
by (lA) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor engaging a "qualified independent underwriter" (as defined in Rule 2720(b)(15) of the NASD Rules (or any successor provision thereto)) to participate in the preparation of the Registration Statement relating to such Registrable Securities pursuant Securities, to exercise usual standards of due diligence in respect thereof and to recommend the public offering price of such Registrable Securities, (B) indemnifying such qualified independent underwriter to the Registration Statementextent of the indemnification of underwriters provided in Section 6 hereof and (C) providing such information to such broker-dealer as may be required in order for such broker-dealer to comply with the requirements of the NASD Rules.
Appears in 3 contracts
Samples: Registration Rights Agreement (American Ammunition Inc /Ca), Registration Rights Agreement (American Ammunition Inc /Ca), Registration Rights Agreement (Usa Technologies Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptly, and file with the SEC by the Required Filing Date, Date a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, times during the period (the "Registration Period") continuing until the earlier of (i) the date when the Investor Investors may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (ii) the date the Investor Investors no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor Initial Investors (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLPllp, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the each Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the InvestorInvestors); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor Investors shall have the opportunity to comment thereon;
(e) Furnish to the each Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(f) As promptly as practicable after becoming aware thereof, notify the each Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;
(g) [intentionally omitted ]As promptly as practicable after becoming aware thereof, notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of a Notice of Effectiveness or any notice of effectiveness or any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time;
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts Notwithstanding the foregoing, if at any time or from time to secure and maintain time after the designation date of all effectiveness of the Registrable Securities covered by Registration Statement, the Company notifies the Investors in writing that the effectiveness of the Registration Statement on is suspended for any reason, whether due to a Potential Material Event or otherwise, the Principal Trading Market and Investors shall not offer or sell any Registrable Securities, or engage in any other transaction involving or relating to the quotation Registrable Securities, from the time of the Registrable Securities on giving of such notice until such Investor receives written notice from the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for Company that such the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery effectiveness of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable has been restored, whether because the Potential Material Event has been disclosed to the public or it no longer constitutes a Potential Material Event or otherwise; provided, however, that the Company may not so suspend the right to such certificates for the holders of Registrable Securities during the periods the Registration Statement is required to be in effect other than during a Permitted Suspension Period (and the applicable provisions of Section 2(b) shall apply with respect to any such denominations or amounts as the case may besuspension other than during a Permitted Suspension Period) . The term "Permitted Suspension Period" means up to two such suspension periods during any consecutive 12-month period, as the Investor may reasonably request, and, within each of which suspension period shall not either (i) be for more than five (5) days or (ii) begin less than ten (10) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor last day of the Registrable Securities pursuant to the Registration Statement.preceding suspension (whether or not such last day was during or after a Permitted Suspension Period);
Appears in 3 contracts
Samples: Registration Rights Agreement (Medix Resources Inc), Registration Rights Agreement (Medix Resources Inc), Registration Rights Agreement (Medix Resources Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptly, and file with the SEC by the Required Filing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter and, thereafter, use its reasonable best all diligent efforts to cause such the Registration Statement relating to the Registrable Securities to become effective by the Required earlier of (i) five (5) business days after notice from the SEC that the Registration Statement may be declared effective, or (ii) the Effective Date Date, and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing times until the earlier earliest of (iA) the date that is one year after the completion of the last Closing Date under the Equity Credit Agreement, (B) the date when the Investor Subscriber may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits limitations, or (iiC) the date the Investor Subscriber no longer own owns any of the Registrable SecuritiesSecurities (collectively, the "Registration Period"), which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in under which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, and comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all the expiration of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration StatementPeriod;
(c) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") Subscriber to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines it being understood that such document is required by law review and objections shall relate exclusively to be so filedmatters in the Registration Statement or omitted therefrom affecting any or all of the Equity Credit Agreement, Subscriber and the Registrable Securities or compliance with the terms of this Agreement or the other Transaction Documents;
(d) Notify Subscriber and Subscriber's legal counsel identified to the Investor and the InvestorCompany ("Subscriber's Counsel and any managing underwriters immediately Counsel") (and, in the case of (i)(A) below, not less than three five (35) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(Ai): (A) when a Prospectus prospectus or any Prospectus prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; and (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus the prospectus or for additional information; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company makes any statement made in the Registration Statement or Prospectus the 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 the prospectus or other documents so that, in the case of the Registration Statement or the Prospectusprospectus, 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. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor Subscriber and to InvestorSubscriber's Counsel Counsel, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and the prospectus, and each amendment or supplement thereto, all correspondence to, with, or from the SEC and (ii) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto and such other documents, as the Investor Subscriber may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the InvestorSubscriber;
(f) Use all diligent efforts to (i) register and/or qualify the Registrable Securities covered by the Registration Statement under such other securities or blue sky laws of such jurisdictions as the Subscriber may reasonably request and in which significant volumes of shares of Common Stock are traded, (ii) prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualification in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(f), (B) subject itself to general taxation in any such jurisdiction, (C) file a general consent to service of process in any such jurisdiction, (D) provide any undertakings that cause more than nominal expense or burden to the Company or (E) make any change in its charter or by-laws or any then existing contracts;
(g) As promptly as practicable after becoming aware thereofof such event, notify the Investor Subscriber of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, subject to Section 4(cmisleading ("Registration Default"), and use its best all diligent efforts to promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and any other necessary steps to cure the Registration Default, and deliver a number of copies of such supplement or amendment to the Investor Subscriber as the Investor Subscriber may reasonably request;
. Failure to file such supplement or amendment to the Registration Statement with the SEC within twenty (g20) [intentionally omitted ]business days shall result in the Company incurring liquidated damages of 1% of the cost of all Registrable Securities then held by the Subscriber for each twenty (20) business day period or portion thereof, beginning on the twenty-first (21st) business day after the Registration Default and terminating on the date such supplement or amendment to the Registration Statement is filed with the SEC.
(h) Comply with Regulation FD As promptly as practicable after becoming aware of such event, notify the Subscriber (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of any notice of effectiveness or any similar rule stop order or regulation regarding the dissemination of information regarding the Company, and in furtherance other suspension of the foregoing, and not in limitation thereof, not disclose to effectiveness of the Investor any non-public material information regarding the CompanyRegistration Statement;
(i) Notwithstanding the foregoing, if at any time or from time to time after the date of effectiveness of the Registration Statement, the Company notifies Subscriber in writing of the existence of a Potential Material Event ("Blackout Notice"), Subscriber shall not offer or sell any Registrable Securities, or engage in any other transaction involving or relating to the Registrable Securities, from the time of the giving of notice with respect to a Potential Material Event until Subscriber receives written notice from the Company that such Potential Material Event either has been disclosed to the public or no longer constitutes a Potential Material Event; provided, however, that the Company may not so suspend the right to such holders of Registrable Securities for more than two ten (10) day periods in the aggregate during any 12-month period ("Blackout Period") with at least a ten (10) Business Day interval between such periods, during the periods the Registration Statement is required to be in effect;
(j) Use its commercially reasonable efforts efforts, if eligible, either to (i) cause all the Registrable Securities covered by the Registration Statement to be listed on a national securities exchange and on each additional national securities exchange on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (ii) secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on as a National Association of Securities Dealers Automated Quotations System ("Nasdaq") "Small Capitalization" within the Principal Trading Market meaning of Rule 11Aa2-1 of the SEC under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the quotation of the Registrable Securities on the Principal Trading Nasdaq Small Cap Market; or if, despite the Company's commercially reasonable efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in doing so, to secure NASD authorization and quotation for such Registrable Securities on the over-the-counter bulletin board and, without limiting the generality of the foregoing, to arrange for at least two market makers to register with the National Association of Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securities; provided, however, that the Subscriber acknowledges that the Company does not currently meet the requirements for listing on a national securities exchange or the Nasdaq Small Cap Market pursuant to (i) or (ii) and that nothing in this section shall be construed to require the Company to pursue such qualification until such time as the Company satisfies such requirements for a period of not less than forty-five (45) days;
(jk) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(kl) Cooperate with the Investor Subscriber to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor Subscriber may reasonably request and registration in such names as the Subscriber may request, ; and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorSubscriber) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to if so required by the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirementsCompany's transfer agent; and
(lm) Take all other reasonable actions necessary to expedite and facilitate disposition by distribution to the Investor Subscriber of the Registrable Securities pursuant to the Registration Statement.
Appears in 3 contracts
Samples: Registration Rights Agreement (Global Matrechs, Inc.), Registration Rights Agreement (Global Matrechs, Inc.), Registration Rights Agreement (Global Matrechs, Inc.)
Obligations of the Company. In connection with the any registration of the Registrable SecuritiesSecurities hereunder, the Company shall do each of have the followingfollowing obligations:
(a) Prepare a. Subject to Section 3(q), the Company shall prepare promptly, and file with the SEC by as soon as practicable after such registration obligation arises hereunder (but in no event later than the Required applicable Filing DateDeadline), a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above), as applicable, and thereafter use its reasonable best efforts to cause each such Registration Statement relating to Registrable Securities to become effective by as soon as possible after such filing, but in any event no later than the Required Effective Date Registration Deadline, and shall thereafter keep the Registration Statement current and effective pursuant to Rule 415 at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing times until such date as is the earlier of (i) the date when on which all of the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or included in such Registration Statement have been sold, and (ii) the date on which no Investor holds any Registrable Securities (the Investor no longer own any of the Registrable Securities“Registration Period”), which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) ), except for information provided in writing by an Investor pursuant to Section 4(a), shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in light therein not misleading. In the event that Form S-3 is not available for the registration of the circumstances resale of any Registrable Securities hereunder (but, for the avoidance of doubt, without in any way affecting the Company’s obligation to register the resale of the Registrable Securities on such other form as is available, as provided in Section 2(a)), (i) subject to Section 3(q), the Company shall undertake to file, within twenty (20) days of such time (which they were made20th day may be subject to extension pursuant to, not misleading;and in accordance with, the provisions of Section 3(q) hereof and, if such 20th day falls on a Saturday, Sunday or other date that the SEC is closed for business, such 20th day shall be extended to the next day on which the SEC is open for business) as such form is available for such registration, a post-effective amendment to the Registration Statement then in effect, or otherwise file a Registration Statement on Form S-3, registering such Registrable Securities on Form S-3; provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement (or post-effective amendment) on Form S-3 covering such Registrable Securities has been declared effective by the SEC, and (ii) the Company shall provide that any Registration Statement on Form S-1 filed hereunder shall incorporate documents by reference (including by way of forward incorporation by reference) to the maximum extent possible.
(b) Prepare b. Subject to Section 3(q), the Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the each Registration Statement filed pursuant to Section 2(a) and the prospectus used in connection with the such Registration Statement as may be necessary to keep the such Registration Statement current and effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, shall comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by the such Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; . In the event that, on any Trading Day (Cas defined below) whenever (the Company receives (or a representative “Registration Trigger Date”), the number of the Company receives on its behalf) any oral or written comments from the SEC in respect of shares available under a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company filed pursuant to the Investor); and (DSection 2(a) with respect or this Section 3(b) is insufficient to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement covering any or cover all of the Registrable Securities or the initiation of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of Securities, then, subject to Section 3(q), the Company contained shall, as soon as practicable, but in any agreement event within twenty-five (including any underwriting agreement25) contemplated hereby ceases days after the Registration Trigger Date (which 25th day may be subject to extension pursuant to, and in accordance with, the provisions of Section 3(q) hereof and, if such 25th day falls on a Saturday, Sunday or other date that the SEC is closed for business, such 25th day shall be true and correct in all material respects; (v) of the receipt by the Company of any notification with respect extended to the suspension of next day on which the qualification or exemption from qualification of any of the Registrable Securities SEC is open for sale in any jurisdictionbusiness), or the initiation or threatening of any proceeding for amend such purpose; and (vi) of the occurrence of any event that to the best knowledge of the Company 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 file a new Registration Statement (on the short form available therefor, if applicable), or both, so thatas to cover the total number of Registrable Securities issued or issuable upon conversion of the shares of Preferred Stock outstanding pursuant to the Certificate of Designation (without giving effect to any limitations on conversion or issuance contained in the Certificate of Designation), plus the number of shares of Common Stock otherwise beneficially owned by the Investors that remain Registrable Securities, in each case as of the case second Trading Day immediately preceding the date of the filing of such amendment or new Registration Statement with the SEC. The Company shall use its reasonable best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof, but, in any event, (x) within sixty (60) days of the Registration Statement Trigger Date (or the Prospectus75th calendar day following the Registration Trigger Date in the event such amendment and/or new Registration Statement is reviewed by the SEC), in either case, such 60th calendar day or such 75th calendar day, as the case may be, it will not contain may be subject to extension pursuant to, and in accordance with, the provisions of Section 3(q) hereof and, if any untrue statement of such calendar day falls on a material fact Saturday, Sunday or omit other date that the SEC is closed for business, such calendar day shall be extended to state any material fact the next day on which the SEC is open for business, or (y) as promptly as practicable in the event the Company is required to be stated therein increase its authorized shares. “Trading Day” shall mean any day on which the Common Stock is traded for any period on the NASDAQ Global Market (the “NasdaqGM”) or, if not the NasdaqGM, the principal securities exchange or necessary to make other securities market on which the statements therein, in light Common Stock is then being traded. For purposes of the circumstances under which they were made, not misleading. In additionforegoing provision, the Company number of shares available under a Registration Statement shall furnish be deemed “insufficient to cover all Registrable Securities” specified above if as of any date of determination (A) the Investor's Counsel with copies number of all intended written responses shares of Common Stock equal to the comments contemplated in clause sum of (Cx) the total number of this Section 3(d) not later than one (1) business day in advance Conversion Shares issued or issuable as of such date of determination upon conversion of the filing shares of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish Preferred Stock then outstanding pursuant to the Investor and to Investor's Counsel Certificate of Designation, plus (iy) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies shares of a prospectus, and all amendments and supplements thereto and such other documents, as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities Common Stock otherwise beneficially owned by the Investor;
Investors that remain Registrable Securities as of such date of determination is greater than (fB) As promptly as practicable after becoming aware thereof, notify the Investor number of shares of Common Stock available for resale under such Registration Statement. The foregoing calculations shall be made without regard to any limitations on conversion or issuance of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered Preferred Stock pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion Certificate of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration StatementDesignation.
Appears in 3 contracts
Samples: Registration Rights Agreement (Proteon Therapeutics Inc), Securities Purchase Agreement (Proteon Therapeutics Inc), Registration Rights Agreement (Proteon Therapeutics Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptly, and file with the SEC by the Required Filing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (ii) the date the Investor no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx Kxxxxxx & Xxxxxx Pxxxxx LLP, Attn: Xxxxxx Sxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Investor;
(f) As promptly as practicable after becoming aware thereof, notify the Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement.
Appears in 3 contracts
Samples: Registration Rights Agreement (Advanced Technology Industries Inc), Registration Rights Agreement (Advanced Technology Industries Inc), Registration Rights Agreement (Brilliant Technologies, CORP)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(aA) Prepare promptly, Promptly (i) prepare and file with the SEC by Commission such amendments (including post-effective amendments) to the Required Filing Date, a Registration Statement with respect and supplements to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts Prospectus as may be necessary to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement continuously effective at and in compliance with the provisions of the Securities Act applicable thereto so as to permit the Prospectus forming part thereof to be current and useable by Investors for resales of the Registrable Securities for a period of five (5) years from the date on which the Registration Statement is first declared effective by the Commission (the "Effective Time") or such shorter period that will terminate when all timesthe Registrable Securities covered by the Registration Statement have been sold pursuant thereto in accordance with the plan of distribution provided in the Prospectus, other than during Permitted Suspension Periods, during transferred pursuant to Rule 144 under the period Securities Act or otherwise transferred in a manner that results in the delivery of new securities not subject to transfer restrictions under the Securities Act (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or and (ii) take all lawful action such that each of (A) the date Registration Statement and any amendment thereto does not, when it becomes effective, 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 Investor no longer own any statements therein, not misleading and (B) the Prospectus forming part of the Registrable SecuritiesRegistration Statement, which and any amendment or supplement thereto, does not at any time during the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any Period 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, in light of the circumstances in under which they were made, not misleading;
(bB) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during During the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Investors as set forth in the Prospectus forming part of the Registration Statement;
(ci) Permit Prior to the filing with the Commission of any Registration Statement (including any amendments thereto) and the distribution or delivery of any Prospectus (including any supplements thereto), provide (A) draft copies thereof to the Investors and reflect in such documents all such comments as the Investors (and their counsel) reasonably may propose and (B) to the Investors a single firm copy of counsel designated by the Investor (which, until further notice, shall be deemed accountant's consent letter to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested included in the filing and (ii) furnish to receive such notification; each, an "Investor's Counsel") to review each Investor whose Registrable Securities are included in the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such its legal counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment identified to the Registration Statement is proposed to be filed; Company, (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (iA) promptly after the same is prepared and publicly distributed, filed with the SECCommission, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectusProspectus, and each amendment or supplement thereto, thereto and (iiB) such number of copies of a prospectus, the Prospectus and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(fD) (i) Register or qualify the Registrable Securities covered by the Registration Statement under such securities or "blue sky" laws of such jurisdictions as the Investors who hold a majority-in- interest of the Registrable Securities being offered reasonably request, (ii) prepare and file in such jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take all such other lawful actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period and (iv) take all such other lawful actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(D), (B) subject itself to general taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(E) As promptly as practicable after becoming aware thereofof such event, notify the each Investor of the happening occurrence of any event of which the Company has knowledgeevent, as a result of which the prospectus Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts and promptly to prepare a supplement or an amendment to the Registration Statement or other appropriate filing with and supplement to the SEC Prospectus to correct such untrue statement or omission, and deliver a number of copies of such supplement or and amendment to the each Investor as the such Investor may reasonably request;
(gF) [intentionally omitted ]
As promptly as practicable after becoming aware of such event, notify each Investor who holds Registrable Securities being sold (hor, in the event of an underwritten offering, the managing underwriters) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoingissuance by the Commission of any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time and take all lawful action to effect the withdrawal, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Companyrescission or removal of such stop order or other suspension;
(iG) Use its reasonable efforts to secure and maintain the designation of Cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Market principal national securities exchange, and the included in an inter-dealer quotation system of a registered national securities association, on or in which securities of the Registrable Securities on same class or series issued by the Principal Trading MarketCompany are then listed or included;
(jH) Provide Maintain a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(kI) Cooperate with the Investor Investors who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement registration statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investors reasonably may request and registered in such names as the Investor may reasonably request, ; and, within five three (53) business days after a Registration Statement registration statement which includes Registrable Securities is ordered declared effective by the SECCommission, the Company shall deliver, deliver and shall cause legal counsel selected by the Company to deliver, deliver to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such registration statement) an appropriate instruction and and, to the extent necessary, an opinion of such counsel;
(J) Take all such other lawful actions reasonably necessary to expedite and facilitate the disposition by the Investors of their Registrable Securities in accordance with the intended methods therefor provided in the Prospectus which are customary under the circumstances;
(K) Make generally available to its security holders as soon as practicable, but in any event not later than three (3) months after (i) the effective date (as defined in Rule 158(c) under the Securities Act) of the Registration Statement and (ii) the effective date of each post-effective amendment to the Registration Statement, as the case may be, an earnings statement of the Company and its subsidiaries complying with Section 11 (a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(L) In the event of an underwritten offering, promptly include or incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the managers reasonably agree should be included therein and to which the Company does not reasonably object and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after it is notified of the matters to be included or incorporated in such Prospectus supplement or post-effective amendment;
(i) Make reasonably available for inspection by Investors, any underwriter participating in any disposition pursuant to the Registration Statement, and any attorney, accountant or other agent retained by such Investors or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and (ii) cause the Company's officers, directors and employees to supply all information reasonably requested by such Investors or any such underwriter, attorney, accountant or agent in connection with the Registration Statement, in each case, as is customary for similar due diligence examinations; provided, however, that all records, information and documents that are designated in writing by the Company, in good faith, as confidential, proprietary or containing any material nonpublic information shall be kept confidential by such Investors and any such underwriter, attorney, accountant or agent (pursuant to an appropriate confidentiality agreement in the case of any such holder or agent), unless such disclosure is made pursuant to judicial process in a court proceeding (after first giving the Company an opportunity promptly to seek a protective order or otherwise limit the scope of the information sought to be disclosed) or is required by law, or such records, information or documents become available to the public generally or through a third party not in violation of an accompanying obligation of confidentiality; and provided, further, that, if the foregoing inspection and information gathering would otherwise disrupt the Company's conduct of its business, such inspection and information gathering shall, to the maximum extent possible, be coordinated on behalf of the Investors and the other parties entitled thereto by one firm of counsel designated by and on behalf of the majority in interest of Investors and other parties;
(N) In connection with any underwritten offering, make such representations and warranties to the Investors participating in such underwritten offering and to the managers, in form, substance and scope as are customarily made by the Company to underwriters in secondary underwritten offerings;
(O) In connection with any underwritten offering, obtain opinions of counsel to the Company (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managers) addressed to the underwriters, covering such matters as are customarily covered in opinions requested in secondary underwritten offerings (it being agreed that the matters to be covered by such opinions shall include, without limitation, directions to as of the Transfer Agent to issue certificates date of Registrable Securities (the opinion and as of the Effective Time of the Registration Statement or most recent post-effective amendment thereto, as the case may be, the absence from the Registration Statement and the Prospectus, including certificates for Registrable Securities any documents incorporated by reference therein, of an untrue statement of a material fact or the omission of a material fact required to be issued after stated therein or necessary to make the Effective Date and replacement certificates for Registrable Securities previously issuedstatements therein (in the case of the Prospectus, in light of the circumstances under which they were made) without legends or other restrictionsnot misleading, subject to compliance customary limitations);
(P) In connection with applicable lawany underwritten offering, obtain "cold comfort" letters and updates thereof from the independent public accountants of the Company (and, if necessary, from the independent public accountants of any subsidiary of the Company or of any business acquired by the Company, in each case for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each underwriter participating in such underwritten offering (if such underwriter has provided such letter, representations or documentation, if any, required for such cold comfort letter to be so addressed), in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with secondary underwritten offerings;
(Q) In connection with any underwritten offering, deliver such documents and certificates as may be reasonably required by the managers, if any, and
(R) In the event that any broker-dealer registered under the Exchange Act shall be an "Affiliate" (as defined in Rule 2729(b)(1) of the rules and regulations of the National Association of Securities Dealers, Inc. (the "NASD Rules") (or any successor provision thereto)) of the Company or has a "conflict of interest" (as defined in Rule 2720(b)(7) of the NASD Rules (or any successor provision thereto)) and such broker-dealer shall underwrite, participate as a member of an underwriting syndicate or selling group or assist in the distribution of any Registrable Securities covered by the Registration Statement, whether as a holder of such Registrable Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company shall assist such broker-dealer in complying with the requirements of the NASD Rules, including, without limitation, prospectus delivery requirements; and
by (lA) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor engaging a "qualified independent underwriter" (as defined in Rule 2720(b)(15) of the NASD Rules (or any successor provision thereto)) to participate in the preparation of the Registration Statement relating to such Registrable Securities pursuant Securities, to exercise usual standards of due diligence in respect thereof and to recommend the public offering price of such Registrable Securities, (B) indemnifying such qualified independent underwriter to the Registration Statementextent of the indemnification of underwriters provided in Section 6 hereof and (C) providing such information to such broker-dealer as may be required in order for such broker-dealer to comply with the requirements of the NASD Rules.
Appears in 3 contracts
Samples: Registration Rights Agreement (RMD Technologies, Inc.), Registration Rights Agreement (World Am, Inc.), Registration Rights Agreement (World Am, Inc.)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(aA) Prepare promptly, Promptly (i) prepare and file with the SEC by Commission such amendments (including post-effective amendments) to the Required Filing Date, a Registration Statement with respect and supplements to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts Prospectus as may be necessary to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement continuously effective at all times, other than during Permitted Suspension Periods, during and in compliance with the provisions of the Securities Act applicable thereto so as to permit the Prospectus forming part thereof to be current and useable by Holders for resales of the Registrable Securities for a period of one (1) year from the date on which the Registration Statement is first declared effective by the Commission (the "“Effective Time”) or such shorter period that will terminate when all the Registrable Securities covered by the Registration Statement have been sold pursuant thereto in accordance with the plan of distribution provided in the Prospectus, transferred pursuant to Rule 144 under the Securities Act or otherwise transferred in a manner that results in the delivery of new securities not subject to transfer restrictions under the Securities Act (the “Registration Period"”) continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or and (ii) take all lawful action such that each of (A) the date Registration Statement and any amendment thereto does not, when it becomes effective, 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 Investor no longer own any statements therein, not misleading and (B) the Prospectus forming part of the Registrable SecuritiesRegistration Statement, which and any amendment or supplement thereto, does not at any time during the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any Period 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, in light of the circumstances in under which they were made, not misleading;
(bB) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during During the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Holders as set forth in the Prospectus forming part of the Registration Statement;
(ci) Permit Prior to the filing with the Commission of any Registration Statement (including any amendments thereto) and the distribution or delivery of any Prospectus (including any supplements thereto), provide (A) draft copies thereof to the Holders and reflect in such documents all such comments as the Holders (and their counsel) reasonably may propose and (B) to the Holders a single firm copy of counsel designated by the Investor (which, until further notice, shall be deemed accountant’s consent letter to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested included in the filing and (ii) furnish to receive such notification; each, an "Investor's Counsel") to review each Holder whose Registrable Securities are included in the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such its legal counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment identified to the Registration Statement is proposed to be filed; Company, (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (iA) promptly after the same is prepared and publicly distributed, filed with the SECCommission, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectusProspectus, and each amendment or supplement thereto, thereto and (iiB) such number of copies of a prospectus, the Prospectus and all amendments and supplements thereto and such other documents, as the Investor such Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Investorsuch Holder;
(fD) (i) Register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions as the Holders who hold a majority-in-interest of the Registrable Securities being offered reasonably request, (ii) prepare and file in such jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take all such other lawful actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period and (iv) take all such other lawful actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(D), (B) subject itself to general taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(E) As promptly as practicable after becoming aware thereofof such event, notify the Investor each Holder of the happening occurrence of any event of which the Company has knowledgeevent, as a result of which the prospectus Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts and promptly to prepare a supplement or an amendment to the Registration Statement or other appropriate filing with and supplement to the SEC Prospectus to correct such untrue statement or omission, and deliver a number of copies of such supplement or and amendment to the Investor each Holder as the Investor such Holder may reasonably request;
(gF) [intentionally omitted ]
As promptly as practicable after becoming aware of such event, notify each Holder who holds Registrable Securities being sold (hor, in the event of an underwritten offering, the managing underwriters) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoingissuance by the Commission of any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time and take all lawful action to effect the withdrawal, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Companyrecession or removal of such stop order or other suspension;
(iG) Use its reasonable efforts to secure and maintain the designation of Cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Market principal national securities exchange, and the included in an inter-dealer quotation system of a registered national securities association, on or in which securities of the Registrable Securities on same class or series issued by the Principal Trading MarketCompany are then listed or included;
(jH) Provide Maintain a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(kI) Cooperate with the Investor Holders who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement registration statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investor Holders reasonably may reasonably request and registered in such names as the Holder may request, ; and, within five three (53) business days after a Registration Statement registration statement which includes Registrable Securities is ordered declared effective by the SECCommission, the Company shall deliver, deliver and shall cause legal counsel selected by the Company to deliver, deliver to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorHolders whose Registrable Securities are included in such registration statement) an appropriate instruction and and, to the extent necessary, an opinion of such counsel;
(J) Take all such other lawful actions reasonably necessary to expedite and facilitate the disposition by the Holders of their Registrable Securities in accordance with the intended methods therefor provided in the Prospectus which are customary under the circumstances;
(K) Make generally available to its security holders as soon as practicable, but in any event not later than three (3) months after (i) the effective date (as defined in Rule 158(c) under the Securities Act) of the Registration Statement and (ii) the effective date of each post-effective amendment to the Registration Statement, as the case may be, an earnings statement of the Company and its subsidiaries complying with Section 11 (a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(L) In the event of an underwritten offering, promptly include or incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the managers reasonably agree should be included therein and to which the Company does not reasonably object and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after it is notified of the matters to be included or incorporated in such Prospectus supplement or post-effective amendment;
(i) Make reasonably available for inspection by the Holders, any underwriter participating in any disposition pursuant to the Registration Statement, and any attorney, accountant or other agent retained by such Holders or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and (ii) cause the Company’s officers, directors and employees to supply all information reasonably requested by such Holders or any such underwriter, attorney, accountant or agent in connection with the Registration Statement, in each case, as is customary for similar due diligence examinations; provided, however, that all records, information and documents that are designated in writing by the Company, in good faith, as confidential, proprietary or containing any material nonpublic information shall be kept confidential and shall not be used as a basis for any market transactions in the securities of the Company by such Holders and any such underwriter, attorney, accountant or agent (pursuant to an appropriate confidentiality agreement in the case of any such holder or agent), unless such disclosure is made pursuant to judicial process in a court proceeding (after first giving the Company an opportunity promptly to seek a protective order or otherwise limit the scope of the information sought to be disclosed) or is required by law, or such records, information or documents become available to the public generally or through a third party not in violation of an accompanying obligation of confidentiality; and provided, further, that, if the foregoing inspection and information gathering would otherwise disrupt the Company’s conduct of its business, such inspection and information gathering shall, to the maximum extent possible, be coordinated on behalf of the Holders and the other parties entitled thereto by one firm of counsel designed by and on behalf of the majority in interest of Holders and other parties;
(N) In connection with any underwritten offering, make such representations and warranties to the Holders participating in such underwritten offering and to the managers, in form, substance and scope as are customarily made by the Company to underwriters in secondary underwritten offerings;
(O) In connection with any underwritten offering, obtain opinions of counsel to the Company (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managers) addressed to the underwriters, covering such matters as are customarily covered in opinions requested in secondary underwritten offerings (it being agreed that the matters to be covered by such opinions shall include, without limitation, directions to as of the Transfer Agent to issue certificates date of Registrable Securities (the opinion and as of the Effective Time of the Registration Statement or most recent post-effective amendment thereto, as the case may be, the absence from the Registration Statement and the Prospectus, including certificates for Registrable Securities any documents incorporated by reference therein, of an untrue statement of a material fact or the omission of a material fact required to be issued after stated therein or necessary to make the Effective Date and replacement certificates for Registrable Securities previously issuedstatements therein (in the case of the Prospectus, in light of the circumstances under which they were made) without legends or other restrictionsnot misleading, subject to compliance customary limitations);
(P) In connection with applicable lawany underwritten offering, obtain “cold comfort” letters and updates thereof from the independent public accountants of the Company (and, if necessary, from the independent public accountants of any subsidiary of the Company or of any business acquired by the Company, in each case for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each underwriter participating in such underwritten offering (if such underwriter has provided such letter, representations or documentation, if any, required for such cold comfort letter to be so addressed), in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with secondary underwritten offerings;
(Q) In connection with any underwritten offering, deliver such documents and certificates as may be reasonably required by the managers, if any, and
(R) In the event that any broker-dealer registered under the Exchange Act shall be an “Affiliate” (as defined in Rule 2729(b)(1) of the rules and regulations of the National Association of Securities Dealers, Inc. (the “NASD Rules”) (or any successor provision thereto)) of the Company or has a “conflict of interest” (as defined in Rule 2720(b)(7) of the NASD Rules (or any successor provision thereto)) and such broker-dealer shall underwrite, participate as a member of an underwriting syndicate or selling group or assist in the distribution of any Registrable Securities covered by the Registration Statement, whether as a holder of such Registrable Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company shall assist such broker-dealer in complying with the requirements of the NASD Rules, including, without limitation, prospectus delivery requirements; and
by (lA) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor engaging a “qualified independent underwriter” (as defined in Rule 2720(b)(15) of the NASD Rules (or any successor provision thereto)) to participate in the preparation of the Registration Statement relating to such Registrable Securities pursuant Securities, to exercise usual standards of due diligence in respect thereof and to recommend the public offering price of such Registrable Securities, (B) indemnifying such qualified independent underwriter to the Registration Statementextent of the indemnification of underwriters provided in Section 6 hereof and (C) providing such information to such broker-dealer as may be required in order for such broker-dealer to comply with the requirements of the NASD Rules.
Appears in 2 contracts
Samples: Registration Rights Agreement (New Century Companies Inc), Registration Rights Agreement (Worldwater Corp)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(a) Prepare promptly, Promptly (i) prepare and file with the SEC by Commission such amendments (including post-effective amendments) to the Required Filing Date, a Registration Statement with respect and supplements to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts Prospectus as may be necessary to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement continuously effective at and in compliance with the provisions of the Securities Act applicable thereto so as to permit the Prospectus forming part thereof to be current and useable by Investors for resales of the Registrable Securities for a period of two years from the date on which the Registration Statement is first declared effective by the Commission (the "Effective Time") or such shorter period that will terminate when all timesthe Registrable Securities covered by the Registration Statement have been sold pursuant thereto in accordance with the plan of distribution provided in the Prospectus, other than during Permitted Suspension Periods, during transferred pursuant to Rule 144 under the period Securities Act or otherwise transferred in a manner that results in the delivery of new securities not subject to transfer restrictions under the Securities Act (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or and (ii) take all lawful action such that each of (A) the date Registration Statement and any amendment thereto does not, when it becomes effective, 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 Investor no longer own any statements therein, not misleading and (B) the Prospectus forming part of the Registrable SecuritiesRegistration Statement, which and any amendment or supplement thereto, does not at any time during the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any Period 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, in light of the circumstances in under which they were made, not misleading;. Notwithstanding the foregoing provisions of this Section 3(a), the Company may, during the Registration Period, suspend the use of the Prospectus for a period not to exceed 60 days (whether or not consecutive) in any 12-month period if the Board of Directors of the Company determines in good faith that because of valid business reasons, including pending mergers or other business combination transactions, the planned acquisition or divestiture of assets, pending material corporate developments and similar events, it is in the best interests of the Company to suspend such use, and prior to or contemporaneously with suspending such use the Company provides the Investors with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. At the end of any such suspension period, the Company shall provide the Investors with written notice of the termination of such suspension.
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during During the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Investors as set forth in the Prospectus forming part of the Registration Statement;
(ci) Permit a single firm Prior to the filing with the Commission of counsel designated by any Registration Statement (including any amendments thereto) and the distribution or delivery of any Prospectus (including any supplements thereto) , provide draft copies thereof to the Investors and reflect in such documents all such comments as the Investors (and their counsel) reasonably may propose and (ii) furnish to each Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review whose Registrable Securities are included in the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such its legal counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment identified to the Registration Statement is proposed to be filed; Company, (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (iA) promptly after the same is prepared and publicly distributed, filed with the SECCommission, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectusProspectus, and each amendment or supplement thereto, and (iiB) such number of copies of a prospectus, the Prospectus and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(fi) Register or qualify the Registrable Securities covered by the Registration Statement under such securities or "blue sky" laws of such jurisdictions as the Investors who hold a majority-in-interest of the Registrable Securities being offered reasonably request, (ii) prepare and file in such jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take all such other lawful actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all such other lawful actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (B) subject itself to general taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(e) As promptly as practicable after becoming aware thereofof such event, notify the each Investor of the happening occurrence of any event of which the Company has knowledgeevent, as a result of which the prospectus Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts and promptly to prepare a supplement or an amendment to the Registration Statement or other appropriate filing with and supplement to the SEC Prospectus to correct such untrue statement or omission, and deliver a number of copies of such supplement or and amendment to the each Investor as the such Investor may reasonably request;
(gf) [intentionally omitted ]
As promptly as practicable after becoming aware of such event, notify each Investor who holds Registrable Securities being sold (hor, in the event of an underwritten offering, the managing underwriters) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoingissuance by the Commission of any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time and take all lawful action to effect the withdrawal, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Companyrecession or removal of such stop order or other suspension;
(ig) Use its reasonable efforts to secure and maintain the designation of Cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Market principal national securities exchange, and the included in an inter-dealer quotation system of a registered national securities association, on or in which securities of the Registrable Securities on same class or series issued by the Principal Trading MarketCompany are then listed or included;
(jh) Provide Maintain a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(ki) Cooperate with the Investor Investors who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investors reasonably may request and registered in such names as the Investor may reasonably request, ; and, within five (5) three business days after a Registration Statement which includes Registrable Securities is ordered declared effective by the SECCommission, the Company shall deliver, deliver and shall cause legal counsel selected by the Company to deliver, deliver to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such Registration Statement) an appropriate instruction and and, to the extent necessary, an opinion of such counsel;
(j) Take all such other lawful actions reasonably necessary to expedite and facilitate the disposition by the Investors of their Registrable Securities in accordance with the intended methods therefor provided in the Prospectus which are customary under the circumstances;
(k) Make generally available to its security holders as soon as practicable, but in any event not later than three (3) months after (i) the effective date (as defined in Rule 158(c) under the Securities Act) of the Registration Statement, and (ii) the effective date of each post-effective amendment to the Registration Statement, as the case may be, an earnings statement of the Company and its subsidiaries complying with Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(l) In the event of an underwritten offering, promptly include or incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the managers reasonably agree should be included therein and to which the Company does not reasonably object and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after it is notified of the matters to be included or incorporated in such Prospectus supplement or post-effective amendment;
(i) Make reasonably available for inspection by Investors, any underwriter participating in any disposition pursuant to the Registration Statement, and any attorney, accountant or other agent retained by such Investors or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and (ii) cause the Company's officers, directors and employees to supply all information reasonably requested by such Investors or any such underwriter, attorney, accountant or agent in connection with the Registration Statement, in each case, as is customary for similar due diligence examinations; provided, however, that all records, information and documents that are designated in writing by the Company, in good faith, as confidential, proprietary or containing any material nonpublic information shall be kept confidential by such Investors and any such underwriter, attorney, accountant or agent (pursuant to an appropriate confidentiality agreement in the case of any such holder or agent), unless such disclosure is made pursuant to judicial process in a court proceeding (after first giving the Company an opportunity promptly to seek a protective order or otherwise limit the scope of the information sought to be disclosed) or is required by law, or such records, information or documents become available to the public generally or through a third party not in violation of an accompanying obligation of confidentiality; and provided further that, if the foregoing inspection and information gathering would otherwise disrupt the Company's conduct of its business, such inspection and information gathering shall, to the maximum extent possible, be coordinated on behalf of the Investors and the other parties entitled thereto by one firm of counsel designed by and on behalf of the majority in interest of Investors and other parties;
(n) In connection with any underwritten offering, make such representations and warranties to the Investors participating in such underwritten offering and to the managers, in form, substance and scope as are customarily made by the Company to underwriters in secondary underwritten offerings;
(o) In connection with any underwritten offering, obtain opinions of counsel to the Company (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managers) addressed to the underwriters, covering such matters as are customarily covered in opinions requested in secondary underwritten offerings (it being agreed that the matters to be covered by such opinions shall include, without limitation, directions to as of the Transfer Agent to issue certificates date of Registrable Securities (the opinion and as of the Effective Time of the Registration Statement or most recent post-effective amendment thereto, as the case may be, the absence from the Registration Statement and the Prospectus, including certificates for Registrable Securities any documents incorporated by reference therein, of an untrue statement of a material fact or the omission of a material fact required to be issued after stated therein or necessary to make the Effective Date and replacement certificates for Registrable Securities previously issuedstatements therein (in the case of the Prospectus, in light of the circumstances under which they were made) without legends or other restrictionsnot misleading, subject to compliance customary limitations);
(p) In connection with applicable lawany underwritten offering, obtain "cold comfort" letters and updates thereof from the independent public accountants of the Company (and, if necessary, from the independent public accountants of any subsidiary of the Company or of any business acquired by the Company, in each case for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each underwriter participating in such underwritten offering (if such underwriter has provided such letter, representations or documentation, if any, required for such cold comfort letter to be so addressed), in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with secondary underwritten offerings;
(q) In connection with any underwritten offering, deliver such documents and certificates as may be reasonably required by the managers, if any; and
(r) In the event that any broker-dealer registered under the Exchange Act shall be an "Affiliate" (as defined in Rule 2729(b)(1) of the rules and regulations of the National Association of Securities Dealers, Inc. (the "NASD Rules") (or any successor provision thereto)) of the Company or has a "conflict of interest" (as defined in Rule 2720(b)(7) of the NASD Rules (or any successor provision thereto)) and such broker-dealer shall underwrite, participate as a member of an underwriting syndicate or selling group or assist in the distribution of any Registrable Securities covered by the Registration Statement, whether as a holder of such Registrable Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company shall assist such broker-dealer in complying with the requirements of the NASD Rules, including, without limitation, prospectus delivery requirements; and
by (lA) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor engaging a "qualified independent underwriter" (as defined in Rule 2720(b) (15) of the NASD Rules (or any successor provision thereto)) to participate in the preparation of the Registration Statement relating to such Registrable Securities pursuant Securities, to exercise usual standards of due diligence in respect thereof and to recommend the public offering price of such Registrable Securities, (B) indemnifying such qualified independent underwriter to the Registration Statementextent of the indemnification of underwriters provided in Section 5 hereof, and (C) providing such information to such broker-dealer as may be required in order for such broker-dealer to comply with the requirements of the NASD Rules.
Appears in 2 contracts
Samples: Registration Rights Agreement (Univec Inc), Registration Rights Agreement (Univec Inc)
Obligations of the Company. In connection with Whenever required under Section 1.2 to effect the registration of the any Registrable Securities, the Company shall do each of the followingshall, as expeditiously as reasonably possible:
(a) Prepare promptly, and file with the SEC by the Required Filing Date, a Registration Statement contemplated by Section 1.2(b) with respect to not less than the number of such Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (ii) the date the Investor no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleadingeffective;
(b) Keep the Registration Statement contemplated by Section 1.2(b) effective until April 26, 2005;
(c) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities securities covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(cd) Permit Legal Counsel to review and comment upon the Registration Statements and all amendments and supplements to the Registration Statements (except for Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and any similar or successor report and registration statements on Form S-8) at least seven (7) business days prior to their filing with the SEC and not file any document containing information relating to Holders to which Legal Counsel reasonably objects. The Company shall not submit a single firm request for acceleration of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq.effectiveness of a Registration Statement or any amendment or supplement thereto without the prior approval of Legal Counsel, which firm has requested consent shall not be unreasonably withheld. The Company shall furnish to receive Legal Counsel, without charge, (i) any correspondence from the SEC or the staff of the SEC to the Company or its representatives relating to any Registration Statement, (ii) promptly after the same is prepared and filed with the SEC, one copy of any Registration Statement and any amendment(s) thereto, including financial statements and schedules and all exhibits and (iii) upon the effectiveness of any Registration Statement, one copy of the prospectus included in such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleadingthereto. In addition, the The Company shall furnish reasonably cooperate with Legal Counsel in performing the InvestorCompany's Counsel with copies of all intended written responses obligations pursuant to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon1.3;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) Holders such number numbers of copies of a prospectus, and all amendments and supplements thereto including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents, documents as the Investor they may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Investorthem;
(f) As promptly Use its best efforts to register and qualify the securities covered by the Registration Statement under such other securities or Blue Sky laws of such jurisdictions as practicable after becoming aware thereofshall be reasonably requested by the Holders; provided that the Company will not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions;
(g) In the event of any underwritten public offering, notify enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the Investor managing underwriter of such offering. Each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement;
(h) Notify each Holder of Registrable Securities covered by such Registration Statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing. Upon the occurrence of any event contemplated by this Section 1.3(h), prepare a supplement or post-effective amendment to each Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not 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, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable best efforts to secure and maintain prevent the designation issuance of all any stop order or other suspension of effectiveness of a Registration Statement, or the Registrable Securities covered by suspension of the Registration Statement on the Principal Trading Market and the quotation qualification of any of the Registrable Securities on for sale in any jurisdiction, however, if such an order or suspension is issued, the Principal Trading MarketCompany shall use its best efforts to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify Legal Counsel and each Holder who holds Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose;
(j) Provide Use its best efforts to cause all such Registrable Securities registered pursuant hereunder to be listed on each securities exchange on which similar securities issued by the Company are then listed; and
(k) Use its best efforts to provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, registrar for the all Registrable Securities registered pursuant hereunder and a CUSIP number for all such Registrable Securities, in each case not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion date of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statementregistration.
Appears in 2 contracts
Samples: Investors' Rights Agreement (Concepts Direct Inc), Investors' Rights Agreement (St Cloud Capital Partners Lp)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(a) Prepare prepare promptly, and file with the SEC by not later than 45 days after the Required Filing Closing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above), and thereafter to use its reasonable best efforts to cause such each Registration Statement relating to Registrable Securities to become effective by as soon as possible after such filing but in any event on or prior to the Effectiveness Required Effective Date Date, and keep the Registration Statement effective pursuant to Rule 415 at all times, other than during Permitted Suspension Periods, times during the period (the "Registration Period") continuing until ; submit to the earlier SEC, within three Business Days after the Company learns that no review of (i) the Registration Statement will be made by the staff of the SEC or that the staff of the SEC has no further comments on the Registration Statement, as the case may be, a request for acceleration of effectiveness of the Registration Statement to a time and date when not later than 48 hours after the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (ii) submission of such request; notify the Investors of the effectiveness of the Registration Statement on the date the Investor no longer own any of Registration Statement is declared effective; and the Registrable SecuritiesCompany represents and warrants to, which and covenants and agrees with, the Investors that the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein), at the time it is first filed with the SEC, at the time it is ordered effective by the SEC and at all times during which it is required to be effective hereunder other than any period after which the Company notifies the Investors pursuant to Section 3(f) until the time when the Investors may again sell Registrable Securities pursuant to the Registration Statement (and each such amendment and supplement at the time it is filed with the SEC and at all times during which it is available for use in connection with the offer and sale of the Registrable Securities) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the furnish to each Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review whose Registrable Securities are included in the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SECits legal counsel, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, SEC or received by the Company, one (1) copy of the Registration StatementStatement and any amendment thereto, each preliminary prospectus and prospectus, prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC and each item of correspondence from the SEC or the staff of the SEC relating to such Registration Statement, and (ii2) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Investor; notwithstanding the Investorforegoing, prior to such disclosure and review, the Company shall notify the Holders if any portion of such documents contains material non-public information, in which case the Holders may decline to review such documents or portions thereof (the "Right to Decline Review");
(d) use commercially reasonable efforts to (i) register and qualify the Registrable Securities covered by the Registration Statement under such securities or blue sky laws of such jurisdictions as the Investors who hold a majority in interest of the Registrable Securities being offered reasonably request, (ii) prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times until the end of the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto (I) to qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (II) to subject itself to general taxation in any such jurisdiction, (III) to file a general consent to service of process in any such jurisdiction, (IV) to provide any undertakings that cause more than nominal expense or burden to the Company or (V) to make any change in its Certificate of Incorporation or by-laws, which in each case the Board of Directors of the Company determines in good faith to be contrary to the best interests of the Company and its stockholders;
(e) in the event that the Registrable Securities are being offered in an underwritten offering pursuant to Section 2(d), enter into and perform its obligations under an underwriting agreement, in usual and customary form, including, without limitation, customary indemnification and contribution obligations, with the underwriters of such offering;
(f) As as promptly as practicable after becoming aware thereofof such event or circumstance, notify the each Investor of the happening of any event or circumstance of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best commercially reasonable efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, file such supplement or amendment with the SEC at such time as shall permit the Investors to sell Registrable Securities pursuant to the Registration Statement as promptly as practicable, and deliver a number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;
(g) [intentionally omitted ]as promptly as practicable after becoming aware of such event, notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of any stop order or other suspension of effectiveness of the Registration Statement at the earliest possible time;
(h) Comply with Regulation FD not less than five Business Days prior to the filing of the Registration Statement or any similar rule related prospectus or regulation regarding any amendment or supplement thereto (including any document that would be incorporated or deemed to be incorporated therein by reference), the dissemination Company shall, (i) furnish to the Holders and their counsel copies of information regarding 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 Companyreview of such Holders and their counsel (subject to the Right to Decline Review), and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in furtherance the reasonable opinion of respective counsel to such to conduct a reasonable investigation within the meaning of the foregoing, 1933 Act. The Company shall not file the Registration Statement or any such prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities and not their counsel shall reasonably object in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;good faith.
(i) Use make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the 0000 Xxx) covering a twelve-month period beginning not later than the first day of the Company's fiscal quarter next following the effective date of the Registration Statement;
(j) [Omitted];
(k) make available for inspection by any Investor, and any attorney, accountant or other agent retained by any such Investor (collectively, the "Inspectors"), all pertinent financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records"), as shall be reasonably necessary to enable each Investor to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in confidence and shall not make any disclosure (except to an Investor) of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement, (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court or government body of competent jurisdiction or (iii) the information in such Records has been made generally available to the public other than by disclosure in violation of this or any other agreement. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(k). Each Investor agrees that it shall, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at the Company's own expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidential. The Company shall hold in confidence and shall not make any disclosure of information concerning an Investor provided to the Company pursuant to Section 4(e) hereof unless (i) disclosure of such information is necessary to comply with federal or state securities laws or applicable rules and regulations of Nasdaq or other market or exchange, (ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement, (iii) the release of such information is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction or (iv) such information has been made generally available to the public other than by disclosure in violation of this or, to the knowledge of the Company, any other agreement. Each party agrees that it shall, upon learning that disclosure of such information concerning another party is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such other party and allow such other party, at such other party's own expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information;
(l) use its commercially reasonable efforts (i) to secure and maintain the designation of cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Nasdaq National Market and or such other principal securities market on which securities of the quotation same class or series issued by the Company are then listed or traded or (ii) if securities of the same class or series as the Registrable Securities are not then listed on the Nasdaq National Market or any such other securities market, to cause all of the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading New York Stock Exchange, the American Stock Exchange or the Nasdaq SmallCap Market;
(jm) Provide provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(kn) Cooperate cooperate with the Investor Investors who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the (not bearing any restrictive legends) representing Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investor Investors may reasonably request and registered in such names as the Investors may request, ; and, within five (5) business days three Business Days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, deliver to the transfer agent for the Registrable Securities (with copies to the Investors whose Registrable Securities are included in such Registration Statement) an instruction substantially in the form attached hereto as EXHIBIT 1 and shall cause legal counsel selected by the Company to deliver, deliver to the Transfer Agent for the Registrable Securities (with copies to the Investor) Investors an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions counsel in the form attached hereto as EXHIBIT 2 (with a copy to the Transfer Agent Company's transfer agent);
(o) during the period the Company is required to issue certificates maintain effectiveness of the Registration Statement pursuant to Section 3(a), the Company shall not bid for or purchase any Common Stock or any right to purchase Common Stock or attempt to induce any person to purchase any such security or right if such bid, purchase or attempt would in any way limit the right of the Investors to sell Registrable Securities (including certificates for Registrable Securities to be issued after by reason of the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirementslimitations set forth in Regulation M under the 1934 Act; and
(lp) Take take all other reasonable actions requested by the Majority Holders necessary to expedite and facilitate disposition by the Investor Investors of the Registrable Securities pursuant to the Registration Statement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Stemcells Inc), Registration Rights Agreement (Stemcells Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of have the followingfollowing obligations:
(a) Prepare a. The Company shall prepare promptly, and file with the SEC by not later than the Required Filing Date (or Mandatory Filing Date), a Resale Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above), and thereafter use its reasonable best efforts to cause such Resale Registration Statement relating to Registrable Securities to become effective by as soon as possible after such filing but in no event later than one hundred and twenty (120) days after filing the Required Effective Date Resale Registration Statement with the SEC, and keep the Resale Registration Statement effective at all timespursuant to Rule 415 until March 31, other than during Permitted Suspension Periods, during the period 2005 (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (ii) the date the Investor no longer own any of the Registrable Securities), which Resale Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in light of the circumstances in which they were made, therein not misleading;.
(b) Prepare b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Resale Registration Statement and the prospectus used in connection with the Resale Registration Statement as may be necessary to keep the Resale Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Periodsuch period, comply with the provisions of the Securities 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by the Resale Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Buyers as set forth in the Resale Registration Statement;. In the event the number of shares available under the Resale Registration Statement filed pursuant to this Agreement is insufficient to cover all of the Registrable Securities, the Company shall amend the Resale Registration Statement, or file a new Registration Statement (on the short form available therefore, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable, but in any event within twenty (20) business days after the necessity therefor arises (based on the market price of the Common Stock and other relevant factors on which the Company reasonably elects to rely). The Company shall use its best efforts to cause any amendment to the Resale Registration Statement to become effective as soon as practicable following the filing thereof, but in any event within sixty (60) days after the date on which the Company reasonably first determines (or reasonably should have determined) the need therefor. The Company shall use its best efforts to cause any new Registration Statement to become effective as soon as practicable following the filing thereof, but in any event within one hundred and twenty (120) days after the date on which the Company reasonably first determines (or reasonably should have determined) the need therefor. The provisions of Section 2(b) above shall be applicable with respect to such obligation.
c. The Company shall furnish to legal counsel for the Buyers (i) promptly (but in no event more than two (2) business days) after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary prospectus and prospectus and each amendment or supplement thereto, and, in the case of the Resale Registration Statement referred to in Section 2(a), each letter written by or on behalf of the Company 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 Resale Registration Statement (other than any portion of any thereof which contains information for which the Company 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 such Buyers may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Buyers. The Company will immediately notify each Buyer by facsimile of the effectiveness of each Registration Statement or any post-effective amendment. The Company will promptly respond (but in no event more than ten (10) business days) to any and all comments received from the SEC (which comments shall promptly be made available to the Buyers upon request), with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable, shall promptly file an acceleration request as soon as practicable (but in no event more than three (3) business days) following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review and shall promptly file with the SEC a final prospectus as soon as practicable (but in no event more than two (2) business days) following receipt by the Company from the SEC of an order declaring the Registration Statement effective. In the event of a breach by the Company of the provisions of this Section 3(c), the Company will be required to make payments pursuant to Section 2(b) hereof.
d. The Company shall use reasonable efforts to (i) register and qualify the Registrable Securities covered by any Registration Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Buyers who hold a majority in interest of the Registrable Securities being offered reasonably request, (ii) prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (a) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (b) subject itself to general taxation in any such jurisdiction, (c) Permit file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause the Company undue expense or burden, or (e) make any change in its charter or bylaws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders.
e. As promptly as practicable after becoming aware of such event, the Company shall notify each Buyer of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in any Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and use its best efforts promptly to prepare a supplement or amendment to any Registration Statement to correct such untrue statement or omission, and deliver such number of copies of such supplement or amendment to each Buyer as such Buyer may reasonably request; provided that, for not more than thirty (30) consecutive trading days (or a total of not more than forty-five (45) trading days in any twelve (12) month period), the Company may delay the disclosure of material non-public information concerning the Company (as well as prospectus or Registration Statement updating) the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company (an "Allowed Delay"); provided, further, that the Company shall promptly (i) notify the Buyers in writing of the existence of (but in no event, without the prior written consent of the Buyers, shall the Company disclose to such Buyers any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay and (ii) advise the Buyers in writing to cease all sales under such Registration Statement until the end of the Allowed Delay. Upon expiration of the Allowed Delay, the Company shall again be bound by the first sentence of this Section 3(e) with respect to the information giving rise thereto.
f. The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of any Registration Statement, and, if such an order is issued, to obtain the withdrawal of such order at the earliest possible moment and to notify each Buyers who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof.
g. The Company shall permit a single firm of or counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") Buyers to review the such Resale Registration Statement and all amendments and supplements thereto (as well as all requests for acceleration or effectiveness thereof) a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that objects and will not request acceleration of such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days Resale Registration Statement without prior notice to such filing) and (if requested by any counsel. The sections of such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Resale Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) covering information with respect to the Registration Statement or any post-effective amendmentBuyers, when the same has become effective; (ii) Buyer's beneficial ownership 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties securities of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases or the Buyers intended method of disposition of Registrable Securities shall conform to be true and correct in all material respects; (v) the information provided to the Company by each of the receipt by Buyers.
h. At the Company of any notification with respect to the suspension request 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In additionBuyer, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel make available for inspection by (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement theretoany Buyers, and (ii) such number of copies of a prospectusBuyers legal counsel, (collectively, the "Inspectors") all pertinent financial and other records, and all amendments pertinent corporate documents and supplements thereto and such other documentsproperties of the Company (collectively, the "Records"), as shall be reasonably deemed necessary by each Inspector to enable each Inspector to exercise its due diligence responsibility, and cause the Investor Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in confidence and shall not make any disclosure (except to a Buyer) of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (a) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement, (b) the release of such Records is ordered pursuant to a subpoena or other order from a court or government body of competent jurisdiction, or (c) the information in such Records has been made generally available to facilitate the disposition public other than by disclosure in violation of this or any other agreement.
i. The Company shall hold in confidence and not make any disclosure of information concerning any Buyers provided to the Company unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement, (iii) the release of such information is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction, or (iv) such information has been made generally available to the public other than by disclosure in violation of this or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning a Buyer is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Buyer prior to making such disclosure, and allow the Buyer, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
j. The Company shall (i) cause all the Registrable Securities owned covered by any Registration Statement to be listed on each national securities exchange on which securities of the same class or series issued by the Investor;
Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (fii) As promptly as practicable after becoming aware thereof, notify to the Investor extent the securities of the happening of any event of which the Company has knowledgesame class or series are not then listed on a national securities exchange, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation and quotation, of all the Registrable Securities covered by the any Registration Statement on the Principal Trading Market and OTC BB and, without limiting the quotation generality of the foregoing, to arrange for at least two market makers to register with the National Association of Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securities on the Principal Trading Market;Securities.
(j) Provide k. The Company shall provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;effective date of any Registration Statement.
(k) Cooperate l. The Company shall cooperate with the Investor Buyers who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the representing Registrable Securities to be offered pursuant to the any Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, or the Buyers may reasonably request and registered in such names as the Investor Buyers may reasonably request, and, within five three (53) business days after a any Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorBuyers whose Registrable Securities are included in such Registration Statement) an appropriate instruction in the form attached hereto as Exhibit 1 and an opinion of such counselcounsel in the form attached hereto as Exhibit 2.
m. At the request of the holders of a majority-in-interest of the Registrable Securities, which the Company shall include, without limitation, directions to prepare and file with the Transfer Agent to issue certificates of Registrable Securities SEC such amendments (including certificates for Registrable Securities post-effective amendments) and supplements to a Registration Statement and any prospectus used in connection with the Registration Statement as may be issued necessary in order to change the plan of distribution set forth in such Registration Statement.
n. From and after the Effective Date date of this Agreement, the Company shall not, and replacement certificates for shall not agree to, allow the holders of any securities of the Company to include any of their securities in any Registration Statement under Section 2(a) hereof or any amendment or supplement thereto under Section 3(b) hereof without the consent of the holders of a majority-in-interest of the Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; andSecurities.
(l) Take o. The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor Buyers of the Registrable Securities pursuant to the a Registration Statement.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Q Comm International Inc), Securities Purchase Agreement (Q Comm International Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptly, Use its commercially reasonable best efforts to prepare and file with the SEC by the Required Filing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) 2 above, and thereafter use its commercially reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, times during the period (the "Registration Period") continuing until the earlier of (i) the date when that is two (2) years after the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits last day of the calendar month following the month in which the Effective Date occurs, or (ii) the date on which the Investor Shares are no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare Use its commercially reasonable best efforts to prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single one firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") Group to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three two (32) business days and not more than ten (10) days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;.
(d) Notify the each Investor and the Investor's Counsel and any managing underwriters immediately promptly (and, in the case of (i)(A) below, not less than three two (32) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one i)
(1) business day following the day (i)(AA) when a Prospectus prospectus or any Prospectus prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the InvestorInvestors); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus prospectus or for additional information; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (viv) of the occurrence of any event that to the best knowledge of the Company makes any statement made in the Registration Statement or Prospectus 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 prospectus or other documents so that, in the case of the Registration Statement or the Prospectusprospectus, 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish or make available to the each Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(f) As promptly as practicable after becoming aware thereof, notify the each Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best commercially reasonable efforts to promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver or make available a number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of Notwithstanding the foregoing, and if at any time or from time to time after the date of effectiveness of the Registration Statement, the Company notifies the Investors in writing of the existence of a Potential Material Event, the Investor shall not offer or sell any Registrable Securities, or engage in limitation thereof, not disclose any other transaction involving or relating to the Registrable Securities, from the time of the giving of notice with respect to a Potential Material Event until such Investor receives written notice from the Company that such Potential Material Event either has been disclosed to the public or no longer constitutes a Potential Material Event; provided, however, that the Company may not so suspend the right to such holders of Registrable Securities during the periods the Registration Statement is required to be in effect other than during a Permitted Suspension Period. The term "Permitted Suspension Period" means one or more suspension periods during any nonconsecutive 12-public material information regarding month period which suspension periods, in the Company;
aggregate, do not exceed one hundred eighty (180) days, provided, however, that no one such suspension period shall either (i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later more than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within forty-five (545) days or (ii) begin less than ten (10) business days after the last day of the preceding suspension (whether or not such last day was during or after a Registration Statement which includes Registrable Securities is ordered effective by the SECPermitted Suspension Period); provided, further, that the Company shall delivershall, and shall cause legal counsel selected by the Company if lawful to deliverdo so, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by provide the Investor with at least two (2) business days' notice of the Registrable Securities pursuant to existence (but not the Registration Statement.substance of) a Potential Material Event;
Appears in 2 contracts
Samples: Registration Rights Agreement (Siga Technologies Inc), Registration Rights Agreement (Siga Technologies Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(aA) Prepare promptly, Promptly (i) prepare and file with the SEC by Commission such amendments (including post-effective amendments) to the Required Filing Date, a Registration Statement with respect and supplements to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts Prospectus as may be necessary to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement continuously effective at and in compliance with the provisions of the Securities Act applicable thereto so as to permit the Prospectus forming part thereof to be current and useable by Investors for resales of the Registrable Securities for a period of five (5) years from the date on which the Registration Statement is first declared effective by the Commission (the "Effective Time") or such shorter period that will terminate when all timesthe Registrable Securities covered by the Registration Statement have been sold pursuant thereto in accordance with the plan of distribution provided in the Prospectus, other than during Permitted Suspension Periods, during transferred pursuant to Rule 144 under the period Securities Act or otherwise transferred in a manner that results in the delivery of new securities not subject to transfer restrictions under the Securities Act (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or and (ii) take all lawful action such that each of (A) the date Registration Statement and any amendment thereto does not, when it becomes effective, 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 Investor no longer own any statements therein, not misleading and (B) the Prospectus forming part of the Registrable SecuritiesRegistration Statement, which and any amendment or supplement thereto, does not at any time during the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any Period 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, in light of the circumstances in under which they were made, not misleading;
(bB) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during During the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Investors as set forth in the Prospectus forming part of the Registration Statement;
(ci) Permit Prior to the filing with the Commission of any Registration Statement (including any amendments thereto) and the distribution or delivery of any Prospectus (including any supplements thereto), provide (A) draft copies thereof to the Investors and reflect in such documents all such comments as the Investors (and their counsel) reasonably may propose and (B) to the Investors a single firm copy of counsel designated by the Investor (which, until further notice, shall be deemed accountant's consent letter to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested included in the filing and (ii) furnish to receive such notification; each, an "Investor's Counsel") to review each Investor whose Registrable Securities are included in the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such its legal counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment identified to the Registration Statement is proposed to be filed; Company, (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (iA) promptly after the same is prepared and publicly distributed, filed with the SECCommission, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectusProspectus, and each amendment or supplement thereto, thereto and (iiB) such number of copies of a prospectus, the Prospectus and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(fD) (i) Register or qualify the Registrable Securities covered by the Registration Statement under such securities or "blue sky" laws of such jurisdictions as the Investors who hold a majority-in-interest of the Registrable Securities being offered reasonably request, (ii) prepare and file in such jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take all such other lawful actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period and (iv) take all such other lawful actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(D), (B) subject itself to general taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(E) As promptly as practicable after becoming aware thereofof such event, notify the each Investor of the happening occurrence of any event of which the Company has knowledgeevent, as a result of which the prospectus Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts and promptly to prepare a supplement or an amendment to the Registration Statement or other appropriate filing with and supplement to the SEC Prospectus to correct such untrue statement or omission, and deliver a number of copies of such supplement or and amendment to the each Investor as the such Investor may reasonably request;
(gF) [intentionally omitted ]
As promptly as practicable after becoming aware of such event, notify each Investor who holds Registrable Securities being sold (hor, in the event of an underwritten offering, the managing underwriters) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoingissuance by the Commission of any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time and take all lawful action to effect the withdrawal, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Companyrescission or removal of such stop order or other suspension;
(iG) Use its reasonable efforts to secure and maintain the designation of Cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Market principal national securities exchange, and the included in an inter-dealer quotation system of a registered national securities association, on or in which securities of the Registrable Securities on same class or series issued by the Principal Trading MarketCompany are then listed or included;
(jH) Provide Maintain a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(kI) Cooperate with the Investor Investors who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement registration statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investors reasonably may request and registered in such names as the Investor may reasonably request, ; and, within five three (53) business days after a Registration Statement registration statement which includes Registrable Securities is ordered declared effective by the SECCommission, the Company shall deliver, deliver and shall cause legal counsel selected by the Company to deliver, deliver to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such registration statement) an appropriate instruction and and, to the extent necessary, an opinion of such counsel;
(J) Take all such other lawful actions reasonably necessary to expedite and facilitate the disposition by the Investors of their Registrable Securities in accordance with the intended methods therefor provided in the Prospectus which are customary under the circumstances;
(K) Make generally available to its security holders as soon as practicable, but in any event not later than three (3) months after (i) the effective date (as defined in Rule 158(c) under the Securities Act) of the Registration Statement and (ii) the effective date of each post-effective amendment to the Registration Statement, as the case may be, an earnings statement of the Company and its subsidiaries complying with Section 11 (a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(L) In the event of an underwritten offering, promptly include or incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the managers reasonably agree should be included therein and to which the Company does not reasonably object and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after it is notified of the matters to be included or incorporated in such Prospectus supplement or post-effective amendment;
(i) Make reasonably available for inspection by Investors, any underwriter participating in any disposition pursuant to the Registration Statement, and any attorney, accountant or other agent retained by such Investors or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and (ii) cause the Company's officers, directors and employees to supply all information reasonably requested by such Investors or any such underwriter, attorney, accountant or agent in connection with the Registration Statement, in each case, as is customary for similar due diligence examinations; provided, however, that all records, information and documents that are designated in writing by the Company, in good faith, as confidential, proprietary or containing any material nonpublic information shall be kept confidential by such Investors and any such underwriter, attorney, accountant or agent (pursuant to an appropriate confidentiality agreement in the case of any such holder or agent), unless such disclosure is made pursuant to judicial process in a court proceeding (after first giving the Company an opportunity promptly to seek a protective order or otherwise limit the scope of the information sought to be disclosed) or is required by law, or such records, information or documents become available to the public generally or through a third party not in violation of an accompanying obligation of confidentiality; and provided, further, that, if the foregoing inspection and information gathering would otherwise disrupt the Company's conduct of its business, such inspection and information gathering shall, to the maximum extent possible, be coordinated on behalf of the Investors and the other parties entitled thereto by one firm of counsel designated by and on behalf of the majority in interest of Investors and other parties;
(N) In connection with any underwritten offering, make such representations and warranties to the Investors participating in such underwritten offering and to the managers, in form, substance and scope as are customarily made by the Company to underwriters in secondary underwritten offerings;
(O) In connection with any underwritten offering, obtain opinions of counsel to the Company (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managers) addressed to the underwriters, covering such matters as are customarily covered in opinions requested in secondary underwritten offerings (it being agreed that the matters to be covered by such opinions shall include, without limitation, directions to as of the Transfer Agent to issue certificates date of Registrable Securities (the opinion and as of the Effective Time of the Registration Statement or most recent post-effective amendment thereto, as the case may be, the absence from the Registration Statement and the Prospectus, including certificates for Registrable Securities any documents incorporated by reference therein, of an untrue statement of a material fact or the omission of a material fact required to be issued after stated therein or necessary to make the Effective Date and replacement certificates for Registrable Securities previously issuedstatements therein (in the case of the Prospectus, in light of the circumstances under which they were made) without legends or other restrictionsnot misleading, subject to compliance customary limitations);
(P) In connection with applicable lawany underwritten offering, obtain "cold comfort" letters and updates thereof from the independent public accountants of the Company (and, if necessary, from the independent public accountants of any subsidiary of the Company or of any business acquired by the Company, in each case for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each underwriter participating in such underwritten offering (if such underwriter has provided such letter, representations or documentation, if any, required for such cold comfort letter to be so addressed), in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with secondary underwritten offerings;
(Q) In connection with any underwritten offering, deliver such documents and certificates as may be reasonably required by the managers, if any, and
(R) In the event that any broker-dealer registered under the Exchange Act shall be an "Affiliate" (as defined in Rule 2729(b)(1) of the rules and regulations of the National Association of Securities Dealers, Inc. (the "NASD Rules") (or any successor provision thereto)) of the Company or has a "conflict of interest" (as defined in Rule 2720(b)(7) of the NASD Rules (or any successor provision thereto)) and such broker-dealer shall underwrite, participate as a member of an underwriting syndicate or selling group or assist in the distribution of any Registrable Securities covered by the Registration Statement, whether as a holder of such Registrable Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company shall assist such broker- dealer in complying with the requirements of the NASD Rules, including, without limitation, prospectus delivery requirements; and
by (lA) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor engaging a "qualified independent underwriter" (as defined in Rule 2720(b)(15) of the NASD Rules (or any successor provision thereto)) to participate in the preparation of the Registration Statement relating to such Registrable Securities pursuant Securities, to exercise usual standards of due diligence in respect thereof and to recommend the public offering price of such Registrable Securities, (B) indemnifying such qualified independent underwriter to the Registration Statementextent of the indemnification of underwriters provided in Section 6 hereof and (C) providing such information to such broker-dealer as may be required in order for such broker-dealer to comply with the requirements of the NASD Rules.
Appears in 2 contracts
Samples: Registration Rights Agreement (RMD Technologies, Inc.), Registration Rights Agreement (RMD Technologies, Inc.)
Obligations of the Company. In connection with Whenever required to effect the registration of the any Registrable Securities, Series A Registrable Securities or Common Stock (with respect to the Founders) pursuant to this Section 2, the Company shall do each of the followingshall, as expeditiously as reasonably possible:
(a) Prepare promptly, and file with the SEC by the Required Filing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (ii) the date the Investor no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during the Registration Period, comply with the provisions of the Securities Act a registration statement with respect to such securities and use its best efforts to cause such registration statement to become effective, and keep such registration statement effective for up to one hundred and eight (180) days or, if earlier, until the disposition Holders of all Registrable Securities covered by or Founders have completed the Registration Statement until such time as all distribution related thereto; provided, however, that at any time, upon written notice to the participating Holders or Founders and for a period not to exceed ninety (90) days thereafter (the “Suspension Period”), the Company may delay the filing or effectiveness of such any registration statement or suspend the use or effectiveness of any registration statement (and the participating Holders or Founders hereby agree not to offer or sell any Registrable Securities have been disposed of in accordance with pursuant to such registration statement during the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(cSuspension Period) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless if the Company reasonably determines believes that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (andCompany may, in the case absence of (i)(A) belowsuch delay or suspension hereunder, not less than three (3) business days prior be required under state or federal securities laws to such filing) and (if requested by disclose any such person) confirm such notice in writing no later corporate development the disclosure of which could reasonably be expected to have a material adverse effect upon the Company, its stockholders, a potentially significant transaction or event involving the Company, or any negotiations, discussions, or proposals directly relating thereto. No more than one (1) business day following such Suspension Periods shall occur in any twelve (12) month period. In the day (i)(A) when event that the Company shall exercise its right to delay or suspend the filing or effectiveness of a Prospectus or any Prospectus supplement or post-registration hereunder, the applicable time period during which the registration statement is to remain effective amendment shall be extended by a period of time equal to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative duration of the Suspension Period. The Company receives on its behalfmay extend the Suspension Period for an additional consecutive sixty (60) any oral or written comments from days with the SEC in respect consent of a Registration Statement the holders of sixty-five percent (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii65%) of the issuance by securities registered under the SEC of any stop order suspending the effectiveness of the Registration Statement covering any or all of the Registrable Securities or the initiation of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases applicable registration statement and which have not yet been sold pursuant to such registration statement, which consent shall not be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 unreasonably withheld. If 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received directed by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment all Holders or supplement thereto, and (ii) Founders registering shares under such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the Investor may reasonably request in order registration statement shall use their best efforts to facilitate the disposition of the Registrable Securities owned by the Investor;
(f) As promptly as practicable after becoming aware thereof, notify the Investor of the happening of any event of which deliver to the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding at the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement.’s
Appears in 2 contracts
Samples: Investor Rights Agreement (Scynexis Inc), Investor Rights Agreement (Scynexis Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare To prepare promptly, and, within thirty (30) days after the Closing Date (or as soon thereafter as the Company is legally permitted under the Securities Act and the applicable rules and regulations of the SEC) (the “Required Filing Date”) file with the SEC by the Required Filing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) 2 above, and thereafter use its best reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by as promptly as possible but in any event within one hundred twenty (120) days after the Required Closing Date (the “Targeted Effective Date Date”) and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, times during the period (the "Registration Period") continuing until the earlier earliest of (i) the date that is three (3) years after the last day of the calendar month following the month in which the Registration Statement so filed is declared effective by the SEC, (ii) the date when the Investor Investors may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits 144, or (iiiii) the date the Investor Investors no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. Notwithstanding the foregoing, if the Pending Registration Statement has not been declared effective by the SEC prior to the Closing Date, then the Company may, at the Company's discretion, prior to the Required Filing Date, file a pre-effective amendment to the Pending Registration Statement to include therein the Investors as selling stockholders and their respective Registrable Securities as registered shares, and shall endeavor to have the Pending Registration Statement as so amended declared effective by the SEC as soon as practicable but in any event prior to the Targeted Effective Date. Notwithstanding the foregoing, prior to the Targeted Effective Date, the Company may contact the Holders’ Representative to request a waiver or extension of the requirement that the Registration Statement be declared effective by the SEC by the Targeted Closing Date, in which case the Company shall provide, in writing, all information available to it as to the reasons why such a waiver or extension is appropriate or advisable, and the Holders’ Representative shall consider such request and, within three (3) business days of its receipt of the aforesaid information, advise the Company of its determination as to whether to grant such waiver or extension, which shall be in the Holders’ Representative’s absolute discretion;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit The Company shall permit a single firm of legal counsel designated by the Investor Holders’ Representative (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's the “Investors’ Counsel"”) to review drafts of the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel Investors’ Counsel reasonably objects. If the Investors’ Counsel objects, unless the Company reasonably determines that shall take under advisement such document is required by law objections and shall endeavor to be so filedpromptly make such revisions to the Registration Statement (or ancillary documents and/or SEC filings in connection therewith) as are necessary to satisfy the objections of the Investors’ Counsel;
(d) Notify the Investor Holders’ Representative and the Investor's Counsel Investors’ Counsel, and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three five (35) business days prior to the contemplated date of such filing) and (if requested by any such personthe Holders' Representative) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "“review" ” of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of relating to a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the InvestorInvestors); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings Proceedings for that purpose; (iv) if at any time the Company has actual knowledge that any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 Proceeding for such purpose; and (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, if requested by the Holders' Representative, the Company shall furnish the Investor's Counsel Holders' Representative with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor Holders’ Representative and the Investors’ Counsel shall have the opportunity to comment thereon;
(e) Furnish to the Investor Holders’ Representative and to Investor's the Investors’ Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus Prospectus and prospectusProspectus, and each amendment or supplement thereto, and (ii) if so requested by any Investor, such number of copies of a prospectusProspectus, and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(f) As promptly as practicable after becoming aware thereof, notify the Investor Holders’ Representative of the happening of any event of which the Company has actual knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Holders' Representative and each Investor as the such Investor may reasonably request;
(g) [intentionally omitted ]As promptly as practicable after becoming aware thereof, notify the Holders’ Representative of the issuance by the SEC of a Notice of Effectiveness or any notice of effectiveness or any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time;
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of Notwithstanding the foregoing, and if at any time or from time to time after the date of effectiveness of a Registration Statement, the Company notifies the Holders’ Representative in writing of the existence of a Potential Material Event, the Investors shall not offer or sell any Registrable Securities, or engage in limitation thereof, not disclose any other transaction involving or relating to the Registrable Securities, from the time of the giving of notice with respect to a Potential Material Event until such Investor receives written notice from the Company that such Potential Material Event either has been disclosed to the public or no longer constitutes a Potential Material Event; provided, however, that the Company may not so suspend the right to such Holders of Registrable Securities for more than two twenty (20) business day periods in the aggregate during any non12-public material information regarding month period ("Suspension Period") with at least a ten (10) business day interval between such periods, during the Companyperiods the Registration Statement is required to be in effect;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading NASDAQ/National Market System or the "OTC Bulletin Board Market" or any successor thereto of the National Association of Securities Dealers Automated Quotations System ("NASDAQ") within the meaning of Rule 11Aa2-1 of the SEC under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the quotation of the Registrable Securities on The NASDAQ National Market System; and further use its efforts to arrange for at least two market makers to register with the Principal Trading MarketNational Association of Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securities;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than three (3) business days after the initial Effective Dateeffective date of the Registration Statement;
(k) Cooperate with the Investor Investors to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor Investors may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such Registration Statement) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and;
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement;
(m) Not take, or omit to take, any actions that would preclude the filing or effectiveness of the Registration Statement or require the withdrawal of the Registration Statement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Eye Care International Inc), Securities Purchase Agreement (Amacore Group, Inc.)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of have the followingfollowing obligations:
(a) Prepare promptly, The Company shall prepare and file with the SEC by the Required Filing Date, a Registration Statement in accordance with respect to not less than the number of Registrable Securities provided in Section 2(a) above2, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date as soon as practicable after such filing, and keep the such Registration Statement effective pursuant to Rule 415 at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing times until such date as is the earlier of (i) the date when on which all of the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or have been sold and (ii) the date the Investor no longer own any on which all of the Registrable SecuritiesSecurities (in the opinion of counsel to the Investors, which shall be sought upon the request of the Company) may be immediately sold to the public without registration or restriction pursuant to Rule 144(k) under the Securities Act or any successor provision (the "REGISTRATION PERIOD"), which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein and all documents incorporated by reference therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements thereintherein not misleading, and (iii) shall comply in all material respects with the requirements of the Securities Act and the rules and regulations of the SEC promulgated thereunder. The financial statements of the Company included in the Registration Statement or incorporated by reference therein will comply in all material respects with the applicable accounting requirements and the published rules and regulations of the SEC applicable with respect thereto. Such financial statements will be prepared in accordance with U.S. generally accepted accounting principles, consistently applied, during the periods involved (except in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed on summary statements) and fairly present in all material respects the consolidated financial position of the Company and its consolidated subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in light the case of the circumstances in which they were madeunaudited statements, not misleading;to immaterial year-end adjustments).
(b) Prepare The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Periodsuch period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until the earlier of (i) such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;Statement or (ii) the expiration of the Registration Period.
(c) Permit a single firm of counsel designated by the The Company shall furnish to each Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review whose Registrable Securities are included in the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such its legal counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration StatementStatement and any amendment thereto, each preliminary prospectus and prospectus, prospectus and each amendment or supplement thereto, and, in the case of the Registration Statement referred to in Section 2(a), each letter written by or on behalf of the Company to the SEC or the staff of the SEC (including, without limitation, any request to accelerate the effectiveness of the Registration Statement or amendment thereto), and each item of correspondence from the SEC or the staff of the SEC, in each case relating to the Registration Statement (other than any portion, if any, thereof which contains information for which the Company has sought confidential treatment), (ii) on the date of effectiveness of the Registration Statement or any amendment thereto, a notice stating that the Registration Statement or amendment has been declared effective, and (iiiii) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto and such other documents, documents as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;.
(fd) The Company shall (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as each Investor who holds Registrable Securities being offered reasonably requests, (ii) prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (B) subject itself to general taxation in any such jurisdiction, (C) file a general consent to service of process in any such jurisdiction, (D) provide any undertakings that cause the Company undue expense or burden, or (E) make any change in its charter or bylaws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its shareholders.
(e) As promptly as practicable after becoming aware thereofof such event, the Company shall notify the each Investor of the happening of any event event, of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading, and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a such number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;.
(f) The Company shall use reasonable best efforts (i) to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, and, if such an order is issued, to obtain the withdrawal of such order at the earliest practicable moment (including in each case by amending or supplementing such Registration Statement) and (ii) to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof (and if such Registration Statement is supplemented or amended, deliver such number of copies of such supplement or amendment to each Investor as such Investor may reasonably request).
(g) [intentionally omitted ]The Company shall permit a single firm of counsel designated by the Investors to review the Registration Statement and all amendments and supplements thereto a reasonable period of time prior to its filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
(h) Comply with Regulation FD or any similar rule or regulation regarding At the dissemination request of information regarding an Investor in the case of an underwritten public offering, the Company shall furnish, on the date of effectiveness of the Registration Statement (i) an opinion, dated as of such date, from counsel representing the Company addressed to each Investor and in form, scope and substance as is customarily given in an underwritten public offering and (ii) a letter, dated such date, from the Company'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 underwriters, if any, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;each Investor.
(i) Use The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement, (iii) the release of such information is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction, (iv) such information has been made generally available to the public other than by the Company or disclosure in violation of this or any other agreement, or (v) such Investor consents to the form and content of any such disclosure. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor prior to making such disclosure, and allow the Investor, at its reasonable efforts expense, to secure and maintain undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
(j) The Company shall, prior to the designation declaration of effectiveness of any registration statement covering Registrable Securities, cause all of the Registrable Securities covered by the Registration Statement to be listed, at its option, on the Principal Trading Market American Stock Exchange ("AMEX") or another national securities exchange and the quotation on each additional national securities exchange on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities on is then permitted under the Principal Trading Market;rules of such exchange.
(jk) Provide The Company shall provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;Securities.
(kl) Cooperate The Company shall cooperate with the Investor Investors who hold Registrable Securities being offered and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates for the (not bearing any restrictive legends) representing Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investor managing underwriter or underwriters, if any, or the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request, and, within five (5) business days after a the Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent transfer agent for the Registrable Securities (with copies to the Investor) Investors whose Registrable Securities are included in such Registration Statement), an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions counsel in the form reasonably satisfactory to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statementtransfer agent.
Appears in 2 contracts
Samples: Registration Rights Agreement (Lenfest Harold Fitzgerald), Registration Rights Agreement (Environmental Tectonics Corp)
Obligations of the Company. (a) If Key Colleague has a Qualifying Termination, Key Colleague shall be entitled to receive Key Colleague’s fully earned but unpaid base salary, through the date of Key Colleague’s Qualifying Termination at the rate then in effect (the “Accrued Obligations”). In connection with addition, subject to Sections 3(c), 3(g) and 4 below, if Key Colleague has a Qualifying Termination, Key Colleague shall be entitled to receive:
(i) Severance pay in an amount equal to the registration sum of (A) one-and-one-half (1.5) times the sum of the Registrable SecuritiesBase Amount and the Target Bonus and (B) a pro rata portion of Key Colleague’s Target Bonus for the partial fiscal year in which the Qualifying Termination occurs (prorated based on the number of days in the fiscal year in which the Qualifying Termination occurs through the termination date), payable in cash in a lump sum on the sixtieth (60th) day following the date of such Qualifying Termination;
(ii) During the period commencing on the effective date of the Qualifying Termination and ending on the earlier of (A) the eighteen (18)-month anniversary thereof, or (B) the date on which Key Colleague ceases to be eligible for COBRA continuation coverage (the “COBRA Period”), subject to Key Colleague’s valid election to continue healthcare coverage under Code Section 4980B, the Company shall do each continue to provide Key Colleague and Key Colleague’s eligible dependents with coverage under its group health plans at the same levels and the same cost to Key Colleague as would have applied if Key Colleague’s employment had not been terminated based on Key Colleague’s elections in effect on the termination date, provided, however, that (x) if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the following:
period of continuation coverage to be, exempt from the application of Code Section 409A under Treasury Regulation Section 1.409A-1(a)(5), or (ay) Prepare promptlythe Company is otherwise unable to continue to cover Key Colleague under its group health plans without incurring penalties (including without limitation, and file with pursuant to Section 2716 of the SEC by Public Health Service Act), then, in either case, an amount equal to each remaining Company-paid portion of the Required Filing Date, a Registration Statement with respect premium under such plans shall thereafter be paid to not less than Key Colleague in substantially equal monthly installments over the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, during the continuation coverage period (or the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (ii) the date the Investor no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleadingremaining portion thereof);
(biii) Prepare and file with For a period of up to twelve (12) months following the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)date of termination, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor (which, until further notice, Key Colleague shall be deemed to be Xxxxxxx & Xxxxxx LLPprovided, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company’s expense, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Investor;
(f) As promptly as practicable after becoming aware thereof, notify the Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel outplacement services selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (consistent with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirementsindustry practice; and
(liv) Take all other reasonable actions necessary to expedite To the extent a Qualified Termination occurs and facilitate disposition by the Investor of Key Colleague has not yet received his or her short term annual cash bonus for his or her prior year performance with the Registrable Securities pursuant to Company, the Registration StatementKey Colleague shall still receive such short term annual cash bonus for prior year performance at the time non-terminated employees receive such short term annual cash bonus if such payment is due.
Appears in 2 contracts
Samples: Change in Control Severance Agreement (Integra Lifesciences Holdings Corp), Change in Control Severance Agreement (Integra Lifesciences Holdings Corp)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptly, and file with the SEC by the Required Filing Date, Date and a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (ii) the date the Investor no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx Krieger & Xxxxxx Prager LLP, Attn: Xxxxxx XxxxxxxSamuel Krieger, Esq., which firm has requested to receive requexxxx xx rexxxxx such notificationnotificxxxxx; eachxxxx, an xn "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Investor;
(f) As promptly as practicable after becoming aware thereof, notify the Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Advanced Technology Industries Inc), Registration Rights Agreement (Advanced Technology Industries Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:.
(a) Prepare promptly, and file with the SEC by sixty (60) days after the Required Filing initial Closing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) aboveShares, and thereafter use its reasonable best efforts to cause such each Registration Statement relating to Registrable Securities to become effective the earlier of (a) five (5) days after notice by the Required Effective Date SEC that it may be declared effective or (b) one hundred twenty (120) days following the initial Closing Date, and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, during times until the period earliest (the "Registration Period") continuing until the earlier of (i) the date that is two years after the Closing Date, (ii) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (iiiii) the date the Investor no longer own owns any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit The Company shall permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Furnish to each Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement covering any or all of the whose Registrable Securities or the initiation of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company makes any statement made are included 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 and its legal counsel identified to the Registration StatementCompany, 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(fe) As promptly as practicable after becoming aware thereofof such event, notify the Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;
(f) As promptly as practicable after becoming aware of such event, notify Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of a Notice of Effectiveness or any notice of effectiveness or any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time;
(g) [intentionally omitted ]Notwithstanding the foregoing, if at any time or from time to time after the date of effectiveness of the Registration Statement, the Company notifies the Investor in writing of the existence of a Potential Material Event, the Investor shall not offer or sell any Registrable Shares, or engage in any other transaction involving or relating to the Registrable Shares, from the time of the giving of notice with respect to a Potential Material Event until Investor receives written notice from the Company that such Potential Material Event either has been disclosed to the public or no longer constitutes a Potential Material Event.
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable best efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on as a National Association of Securities Dealers Automated Quotations System ("NASDAQ") "Small Capitalization" within the Principal Trading Market meaning of Rule 11Aa2-1 of the SEC under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the quotation of the Registrable Securities on The NASDAQ SmallCap Market; or if, despite the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for Company's reasonable efforts to satisfy the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SECpreceding clause, the Company shall deliver, and shall cause legal counsel selected by the Company to deliveris unsuccessful in doing so, to the Transfer Agent secure NASDAQ/OTC Bulletin Board authorization and quotation for the such Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall includeand, without limitation, directions to limiting the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor generality of the foregoing, to arrange for at least two market makers to register with the National Association of Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securities pursuant to the Registration Statement.Securities;
Appears in 2 contracts
Samples: Registration Rights Agreement (Strategic Solutions Group Inc), Registration Rights Agreement (Strategic Solutions Group Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptly, and file with the SEC by the later of (x) the Required Filing Date and (y) five business days after the Certificate of Incorporation Amendment Filing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (ii) the date the Investor no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(f) As promptly as practicable after becoming aware thereof, notify the Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the InvestorInvestor whose Registrable Securities are included in such Registration Statement) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Advanced Technology Industries Inc), Registration Rights Agreement (Advanced Technology Industries Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptly, and file with the SEC by the later of (x) the Required Filing Date and (y) five business days after the Certificate of Incorporation Amendment Filing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (ii) the date the Investor no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx Kxxxxxx & Xxxxxx Pxxxxx LLP, Attn: Xxxxxx Sxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Investor;
(f) As promptly as practicable after becoming aware thereof, notify the Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Advanced Technology Industries Inc), Registration Rights Agreement (Advanced Technology Industries Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptly, and file with the SEC by the Required Filing Date, Date a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, times during the period (the "Registration Period") continuing until the earlier of (i) the date when the Investor Investors may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (ii) the date the Investor Investors no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor Initial Investors (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx Prager LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the each Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the InvestorInvestors); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish communicate with the Investor's Counsel with copies of all intended regard to its proposed written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of ), so that, to the filing of such responses with extent practicable, the SEC so that the Investor Investors shall have the opportunity to comment thereon;
(e) Furnish to the each Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(f) As promptly as practicable after becoming aware thereof, notify the each Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;
(g) [intentionally omitted ]As promptly as practicable after becoming aware thereof, notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of a Notice of Effectiveness or any notice of effectiveness or any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time;
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Notwithstanding the foregoing, if at any time or from time to time after the date of effectiveness of the Registration Statement, the Company notifies the Investors in writing that the effectiveness of the Registration Statement is suspended for any reason, whether due to a Potential Material Event or otherwise, the Investors shall not offer or sell any Registrable Securities, or engage in any other transaction involving or relating to the Registrable Securities, from the time of the giving of such notice until such Investor receives written notice from the Company that such the effectiveness of the Registration Statement has been restored, whether because the Potential Material Event has been disclosed to the public or it no longer constitutes a Potential Material Event or otherwise; PROVIDED, HOWEVER, that the Company may not so suspend the right to such holders of Registrable Securities during the periods the Registration Statement is required to be in effect other than during a Permitted Suspension Period (and the applicable provisions of Section 2(b) shall apply with respect to any such suspension other than during a Permitted Suspension Period);
(j) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market within the meaning of Rule 11Aa2-1 of the SEC under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the quotation of the Registrable Securities on the Principal Trading Market;
(jk) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(kl) Cooperate with the Investor Investors who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor Investors may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such Registration Statement) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including Securities(including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable lawlaw and other rules and regulations, including, without limitation, prospectus delivery requirements; and
(lm) Take all other reasonable administrative steps and actions (including the participation of Company counsel) necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement; provided, however, that the foregoing does not require that the Company take any steps whatsoever regarding the identification or selection of a broker to sell the Registrable Securities, the identification of buyers of the Registrable Securities, or the negotiation of the sale terms of the Registrable Securities.
Appears in 2 contracts
Samples: Registration Rights Agreement (New Visual Corp), Registration Rights Agreement (Ambient Corp /Ny)
Obligations of the Company. In connection with the any registration of the Registrable SecuritiesSecurities hereunder, the Company shall do each of have the following:following obligations:
(a) Prepare a. The Company shall prepare promptly, and file with the SEC by as soon as practicable after such registration obligation arises hereunder (but in no event later than the Required applicable Filing DateDeadline), a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above), as applicable, and thereafter use its reasonable best efforts to cause each such Registration Statement relating to Registrable Securities to become effective by as soon as possible after such filing, but in any event shall cause each such Registration Statement relating to Registrable Securities to become effective no later than the Required Effective Date Registration Deadline, and shall thereafter keep the Registration Statement current and effective pursuant to Rule 415 at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing times until such date as is the earlier of (i) the date when on which all of the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or included in such Registration Statement have been sold and (ii) the date on which no Investor holds any Registrable Securities (the Investor no longer own any of the Registrable Securities“Registration Period”), which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) ), except for information provided in writing by an Investor pursuant to Section 4(a), shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in light therein not misleading. In the event that Form S-3 is not available for the registration of the circumstances resale of any Registrable Securities hereunder (but, for the avoidance of doubt, without in which they were madeany way affecting the Company’s obligation to register the resale of the Registrable Securities on such other form as is available, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used as provided in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension PeriodsSection 2(a)), and(i) the Company shall undertake to file, during the Registration Period, comply with the provisions within twenty-five (25) days of the Securities Act with respect to the disposition of all Registrable Securities covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit form is available for such registration, a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (then in effect, or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of otherwise file a Registration Statement (copies oron Form S-3, in the case of oral comments, summaries of registering such comments shall be promptly furnished by Registrable Securities on Form S-3; provided that the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) of the issuance by the SEC of any stop order suspending shall maintain the effectiveness of the Registration Statement covering any or all of the Registrable Securities or the initiation of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Investor;
(f) As promptly as practicable after becoming aware thereof, notify the Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct effect until such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor time as the Investor may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes (or post-effective amendment) on Form S-3 covering such Registrable Securities is ordered has been declared effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Neos Therapeutics, Inc.), Registration Rights Agreement (Neos Therapeutics, Inc.)
Obligations of the Company. In connection with the each registration of the Registrable Securities, the Company shall do each of have the followingfollowing obligations:
(a) Prepare promptly, and file with the SEC by the Required Filing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (ii) the date the Investor no longer own any of the Registrable Securities, which Each Registration Statement (including any amendments or supplements thereto and prospectuses contained therein and all documents incorporated by reference therein) filed pursuant to this Agreement (i) shall comply in all material respects with the requirements of the Securities Act and the rules and regulations of the SEC promulgated thereunder and (ii) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements thereintherein not misleading. The financial statements of the Company included in the Registration Statement or incorporated by reference therein shall comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC applicable with respect thereto. Such financial statements shall be prepared in accordance with U.S. generally accepted accounting principles, consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and shall fairly present in all material respects the consolidated financial position of the Company and its consolidated subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in light the case of the circumstances in which they were madeunaudited statements, not misleading;to immaterial year-end adjustments).
(b) Prepare The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Periodsuch period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Investor as set forth in the Registration Statement;
(c) Permit . Notwithstanding the foregoing, the Company's obligations hereunder to file a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto to keep a reasonable period of time (but not less than three (3) business days) prior to their filing with Registration Statement in effect under the SEC, and not file any document in a form to which such counsel reasonably objects, unless Securities Act shall be suspended if the Company reasonably determines that such document is required by law engaged or intends to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (andengage in an acquisition, financing or other material transaction which, in the case good faith determination of (i)(A) belowthe Board of Directors of the Company, not less than three (3) business days prior to such filing) and (if would be adversely affected by the requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment registration to the Registration Statement is proposed to be filed; (B) whenever material detriment of the SEC notifies Company, or the Company whether there will be a "review" Board of such Registration Statement; (C) whenever the Company receives (or a representative Directors of the Company receives on determines in good faith that the registration would require the disclosure of material information that the Company has a bona fide business purpose for preserving as confidential, and that the Company is not otherwise required by applicable securities laws or regulations to disclose, in which event, the Company may, at its behalf) any oral or written comments option, direct that such request be delayed for a period not in excess of 120 days from the SEC in respect date of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished determination by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) Board 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 ProspectusDirectors, as the case may be; provided, it will however, that the Company may not contain exercise this deferral right more than once in 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 light of the circumstances under which they were made, not misleading. In addition, the 12-month period.
(c) The Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy such reasonable number of copies of the Registration StatementStatement and any amendment thereto, each preliminary prospectus and prospectus, prospectus and each amendment or supplement thereto as the Investors may reasonably request. In the case of the Registration Statement referred to in Section 2(a), the Company shall furnish to the Investors a copy of each letter written by or on behalf of the Company to the SEC or the staff of the SEC (including, without limitation, any request to accelerate the effectiveness of any Registration Statement or amendment thereto), and each item of correspondence from the SEC or the staff of the SEC, in each case relating to such Registration Statement (other than any portion, if any, thereof which contains information for which the Company has sought confidential treatment), (ii) on the date of effectiveness of the Registration Statement or any amendment thereto, a notice stating that the Registration Statement or amendment has been declared effective, and (iiiii) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto and such other documents, documents as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;.
(fd) The Company shall use all commercially reasonable efforts to (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as such Investor reasonably requests (ii) prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (a) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (b) subject itself to general taxation in any such jurisdiction, (c) file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause the Company undue expense or burden, or (e) make any change in its certificate of incorporation or bylaws, which in each case the Board of Directors of the Company determines in good faith to be contrary to the best interests of the Company and its stockholders.
(e) As promptly as practicable after becoming aware thereofof such event, the Company shall notify the Investor Investors by telephone or facsimile of the happening of any event event, of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading, and, subject to Section 4(c), and use its reasonable best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, omission and deliver a such number of copies of such supplement or amendment to the Investors as the Investors may reasonably request.
(f) The Company shall use reasonable best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, and, if such an order is issued, to obtain the withdrawal of such order at the earliest practicable date (including in each case by amending or supplementing such Registration Statement) and to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof (and if such Registration Statement is supplemented or amended, deliver such number of copies of such supplement or amendment to such Investor as the Investor may reasonably request;).
(g) [intentionally omitted ]The Company shall permit a single firm of counsel designated by the Investors to review the Registration Statement and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC.
(h) Comply with Regulation FD or The Company shall make available for inspection by (i) any similar rule or regulation regarding underwriter participating in any disposition pursuant to a Registration Statement and (ii) one firm of attorneys retained by all such underwriters (collectively, the dissemination "Inspectors") all pertinent financial and other records, and pertinent corporate documents and properties of information regarding the Company (collectively, the "Records"), as shall be reasonably deemed necessary by each Inspector to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and in furtherance employees to supply all information which any Inspector may reasonably request for purposes of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;such due diligence.
(i) Use its The Company shall use reasonable best efforts to promptly either (i) secure and maintain the designation and quotation, of all the Registrable Securities covered by a Registration Statement on the Nasdaq National Market or the Nasdaq Small Cap Market, or (ii) cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Market NYSE or the AMEX or another national securities exchange and the quotation on each additional national securities exchange on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities on is then permitted under the Principal Trading Market;rules of such exchange.
(j) Provide The Company shall provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;effective date of the Registration Statement.
(k) Cooperate The Company shall hold in confidence and not make any disclosure of information provided to the Company concerning the Investors unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement, (iii) the release of such information is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction, (iv) such information has been made generally available to the public other than by disclosure in violation of this or any other agreement, or (v) the Investors consent to the form and content of any such disclosure. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investors is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Investors prior to making such disclosure, and allow the Investors, at their expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
(l) The Company shall cooperate with the Investor Investors and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates for the (not bearing any restrictive legends) representing Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investor managing underwriter or underwriters, if any, or the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request, and, within five three (53) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such Registration Statement)
(1) an appropriate instruction and opinion of such counselcounsel for the Company, which shall include, without limitation, directions to dated the Transfer Agent to issue certificates effective date of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement, and (2) "comfort" letters signed by the Company's independent public accountants who have examined and reported on the Company's financial statements included in the Registration Statement, to the extent permitted by the standards of the AICPA or other relevant authorities, covering substantially the same matters with respect to the registration statement (and the prospectus included therein) and (in the case of the accountants' "comfort" letters, with respect to events subsequent to the date of the financial statements), in each case as are customarily covered in opinions of issuers' counsel and in accountants' "comfort" letters delivered to the underwriters in underwritten public offerings of securities.
(m) The Company shall comply with applicable federal securities laws and regulations related to a Registration Statement and offering and sale of securities.
(n) The Company shall use its commercially reasonable efforts to qualify for registration on Form S-3 or any comparable or successor form or forms and remain so qualified following the Closing Date.
(o) The Company shall take all such other actions as any Investor or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities.
Appears in 2 contracts
Samples: Investor Rights Agreement (Biosource International Inc), Investor Rights Agreement (Biosource International Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(aA) Prepare promptly, Promptly (i) prepare and file with the SEC by Commission such amendments (including post-effective amendments) to the Required Filing Date, a Registration Statement with respect and supplements to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts Prospectus as may be necessary to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement continuously effective at and in compliance with the provisions of the Securities Act applicable thereto so as to permit the Prospectus forming part thereof to be current and useable by Investor for resales of the Registrable Securities for a period of five (5) years from the date on which the Registration Statement is first declared effective by the Commission (the "Effective Time") or such shorter period that will terminate when all timesthe Registrable Securities covered by the Registration Statement have been sold pursuant thereto in accordance with the plan of distribution provided in the Prospectus, other than during Permitted Suspension Periods, during transferred pursuant to Rule 144 under the period Securities Act or otherwise transferred in a manner that results in the delivery of new securities not subject to transfer restrictions under the Securities Act (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or and (ii) take all lawful action such that each of (A) the date Registration Statement and any amendment thereto does not, when it becomes effective, 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 Investor no longer own any statements therein, not misleading and (B) the Prospectus forming part of the Registrable SecuritiesRegistration Statement, which and any amendment or supplement thereto, does not at any time during the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any Period 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, in light of the circumstances in under which they were made, not misleading;
(bB) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during During the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Investor as set forth in the Prospectus forming part of the Registration Statement;
(ci) Permit a single firm Prior to the filing with the Commission of counsel designated by any Registration Statement (including any amendments thereto) and the distribution or delivery of any Prospectus (including any supplements thereto), provide (A) draft copies thereof to the Investor and reflect in such documents all such comments as the Investor (which, until further notice, shall be deemed and its counsel) reasonably may propose and (B) to the Investor a copy of the accountant's consent letter to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested included in the filing and (ii) furnish to receive such notification; each, an "Investor's Counsel") to review the Investor whose Registrable Securities are included in the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such its legal counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment identified to the Registration Statement is proposed to be filed; Company, (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (iA) promptly after the same is prepared and publicly distributed, filed with the SECCommission, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectusProspectus, and each amendment or supplement thereto, thereto and (iiB) such number of copies of a prospectus, the Prospectus and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(fD) (i) Register or qualify the Registrable Securities covered by the Registration Statement under such securities or "blue sky" laws of such jurisdictions as the Investor who holds a majority-in-interest of the Registrable Securities being offered reasonably requests, (ii) prepare and file in such jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take all such other lawful actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period and (iv) take all such other lawful actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(D), (B) subject itself to general taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(E) As promptly as practicable after becoming aware thereofof such event, notify the Investor of the happening occurrence of any event of which the Company has knowledgeevent, as a result of which the prospectus Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts and promptly to prepare a supplement or an amendment to the Registration Statement or other appropriate filing with and supplement to the SEC Prospectus to correct such untrue statement or omission, and deliver a number of copies of such supplement or and amendment to the Investor as the such Investor may reasonably request;
(gF) [intentionally omitted ]
As promptly as practicable after becoming aware of such event, notify the Investor who holds Registrable Securities being sold (hor, in the event of an underwritten offering, the managing underwriters) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoingissuance by the Commission of any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time and take all lawful action to effect the withdrawal, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Companyrecession or removal of such stop order or other suspension;
(iG) Use its reasonable efforts to secure and maintain the designation of Cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Market principal national securities exchange, and the included in an inter-dealer quotation system of a registered national securities association, on or in which securities of the Registrable Securities on same class or series issued by the Principal Trading MarketCompany are then listed or included;
(jH) Provide Maintain a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(kI) Cooperate with the Investor who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement registration statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investor reasonably may reasonably request and registered in such names as the Investor may request, ; and, within five three (53) business days after a Registration Statement registration statement which includes Registrable Securities is ordered declared effective by the SECCommission, the Company shall deliver, deliver and shall cause legal counsel selected by the Company to deliver, deliver to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestor whose Registrable Securities are included in such registration statement) an appropriate instruction and and, to the extent necessary, an opinion of such counsel;
(J) Take all such other lawful actions reasonably necessary to expedite and facilitate the disposition by the Investor of its Registrable Securities in accordance with the intended methods therefor provided in the Prospectus which are customary under the circumstances;
(K) Make generally available to its security holders as soon as practicable, but in any event not later than three (3) months after (i) the effective date (as defined in Rule 158(c) under the Securities Act) of the Registration Statement and (ii) the effective date of each post-effective amendment to the Registration Statement, as the case may be, an earnings statement of the Company and its subsidiaries complying with Section 11 (a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(L) In the event of an underwritten offering, promptly include or incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the managers reasonably agree should be included therein and to which the Company does not reasonably object and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after it is notified of the matters to be included or incorporated in such Prospectus supplement or post-effective amendment;
(i) Make reasonably available for inspection by Investor, any underwriter participating in any disposition pursuant to the Registration Statement, and any attorney, accountant or other agent retained by such Investor or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and (ii) cause the Company's officers, directors and employees to supply all information reasonably requested by such Investor or any such underwriter, attorney, accountant or agent in connection with the Registration Statement, in each case, as is customary for similar due diligence examinations; provided, however, that all records, information and documents that are designated in writing by the Company, in good faith, as confidential, proprietary or containing any material nonpublic information shall be kept confidential by such Investor and any such underwriter, attorney, accountant or agent (pursuant to an appropriate confidentiality agreement in the case of any such holder or agent), unless such disclosure is made pursuant to judicial process in a court proceeding (after first giving the Company an opportunity promptly to seek a protective order or otherwise limit the scope of the information sought to be disclosed) or is required by law, or such records, information or documents become available to the public generally or through a third party not in violation of an accompanying obligation of confidentiality; and provided, further, that, if the foregoing inspection and information gathering would otherwise disrupt the Company's conduct of its business, such inspection and information gathering shall, to the maximum extent possible, be coordinated on behalf of the Investor and the other parties entitled thereto by one firm of counsel designed by and on behalf of the majority in interest of Investor and other parties;
(N) In connection with any underwritten offering, make such representations and warranties to the Investor participating in such underwritten offering and to the managers, in form, substance and scope as are customarily made by the Company to underwriters in secondary underwritten offerings;
(O) In connection with any underwritten offering, obtain opinions of counsel to the Company (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managers) addressed to the underwriters, covering such matters as are customarily covered in opinions requested in secondary underwritten offerings (it being agreed that the matters to be covered by such opinions shall include, without limitation, directions to as of the Transfer Agent to issue certificates date of Registrable Securities (the opinion and as of the Effective Time of the Registration Statement or most recent post-effective amendment thereto, as the case may be, the absence from the Registration Statement and the Prospectus, including certificates for Registrable Securities any documents incorporated by reference therein, of an untrue statement of a material fact or the omission of a material fact required to be issued after stated therein or necessary to make the Effective Date and replacement certificates for Registrable Securities previously issuedstatements therein (in the case of the Prospectus, in light of the circumstances under which they were made) without legends or other restrictionsnot misleading, subject to compliance customary limitations);
(P) In connection with applicable lawany underwritten offering, obtain "cold comfort" letters and updates thereof from the independent public accountants of the Company (and, if necessary, from the independent public accountants of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each underwriter participating in such underwritten offering (if such underwriter has provided such letter, representations or documentation, if any, required for such cold comfort letter to be so addressed), in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with secondary underwritten offerings;
(Q) In connection with any underwritten offering, deliver such documents and certificates as may be reasonably required by the managers, if any, and
(R) In the event that any broker-dealer registered under the Exchange Act shall be an "Affiliate" (as defined in Rule 2729(b)(1) of the rules and regulations of the National Association of Securities Dealers, Inc. (the "NASD Rules") (or any successor provision thereto)) of the Company or has a "conflict of interest" (as defined in Rule 2720(b)(7) of the NASD Rules (or any successor provision thereto)) and such broker-dealer shall underwrite, participate as a member of an underwriting syndicate or selling group or assist in the distribution of any Registrable Securities covered by the Registration Statement, whether as a holder of such Registrable Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company shall assist such broker-dealer in complying with the requirements of the NASD Rules, including, without limitation, prospectus delivery requirements; and
by (lA) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor engaging a "qualified independent underwriter" (as defined in Rule 2720(b)(15) of the NASD Rules (or any successor provision thereto)) to participate in the preparation of the Registration Statement relating to such Registrable Securities pursuant Securities, to exercise usual standards of due diligence in respect thereof and to recommend the public offering price of such Registrable Securities, (B) indemnifying such qualified independent underwriter to the Registration Statementextent of the indemnification of underwriters provided in Section 6 hereof and (C) providing such information to such broker-dealer as may be required in order for such broker-dealer to comply with the requirements of the NASD Rules.
Appears in 2 contracts
Samples: Registration Rights Agreement (Quintek Technologies Inc), Registration Rights Agreement (Usa Technologies Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(a) Prepare promptly, Promptly (i) prepare and file with the SEC by Commission such amendments to the Required Filing Date, a Registration Statement with respect and supplements to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts Prospectus as may be necessary to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement continuously effective at all times, other than during Permitted Suspension Periods, during and in compliance with the provisions of the Securities Act applicable thereto so as to permit the Prospectus forming part thereof to be current and useable by Holder for resale of the Registrable Securities for a period of two (2) years from the date on which the Registration Statement is first declared effective by the Commission ("Registration PeriodEFFECTIVE TIME") continuing until or such shorter period that will terminate when all the earlier of (i) the date when the Investor may sell all Registrable Securities under covered by the Registration Statement have been sold pursuant thereto in accordance with the plan of distribution provided in the Prospectus, transferred pursuant to Rule 144 without volume under the Securities Act or other otherwise transferred in a manner that results in the delivery of new securities not subject to transfer restrictions or limits or under the Securities Act ("REGISTRATION PERIOD") and (ii) take all lawful action such that each of (A) the date Registration Statement and any amendment thereto does not, when it becomes effective, 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 Investor no longer own any statements therein, not misleading and (B) the Prospectus forming part of the Registrable SecuritiesRegistration Statement, which and any amendment or supplement thereto, does not at any time during the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any Period 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, in light of the circumstances in under which they were made, not misleading;
(bi) Prepare and file Prior to the filing with the SEC such amendments Commission of any Registration Statement (including post-effective amendmentsany amendments thereto) and the distribution or delivery of any Prospectus (including any supplements thereto), provide draft copies thereof to Holder and reflect in such documents all such comments as Holder (and its counsel) reasonably may propose and (ii) furnish to Holder whose Registrable Securities are included in the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during the Registration Period, comply with the provisions of the Securities Act with respect its legal counsel identified to the disposition of all Registrable Securities covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
Company, (c) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (iA) promptly after the same is prepared and publicly distributed, filed with the SECCommission, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectusProspectus, and each amendment or supplement thereto, thereto and (iiB) such number of copies of a prospectus, the Prospectus and all amendments and supplements thereto and such other documents, as the Investor Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the InvestorHolder;
(fi) Register or qualify the Registrable Securities covered by the Registration Statement under such securities or "blue sky" laws of such jurisdictions as Holder reasonably requests, (ii) prepare and file in such jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take all such other lawful actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period and (iv) take all such other lawful actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions.
(d) As promptly as practicable after becoming aware thereofof such event, notify the Investor Holder of the happening occurrence of any event of which the Company has knowledgeevent, as a result of which the prospectus Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts and promptly to prepare a supplement or an amendment to the Registration Statement or other appropriate filing with and supplement to the SEC Prospectus to correct such untrue statement or omission, and deliver a number of copies of such supplement or and amendment to the Investor as the Investor Holder may reasonably request;
(ge) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination As promptly as practicable after becoming aware of information regarding the Companysuch event, and in furtherance notify Holder of the foregoingissuance by the Commission of any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time and take all lawful action to effect the withdrawal, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Companyrecession or removal of such stop order or other suspension;
(if) Use its reasonable efforts to secure and maintain the designation of Cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Market and the principal national securities exchange or included in an inter-dealer quotation system of a registered national securities association, on or in which securities of the Registrable Securities on same class or series issued by the Principal Trading MarketCompany are then listed or included;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(kg) Cooperate with the Investor Holder who holds Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement registration statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investor Holder reasonably may reasonably request and registered in such names as Holder may request, ; and, within five three (53) business days after a Registration Statement registration statement which includes Registrable Securities is ordered declared effective by the SECCommission, the Company shall deliver, deliver and shall cause legal counsel selected by the Company to deliver, deliver to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such registration statement) an appropriate instruction and and, to the extent necessary, an opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and;
(lh) Take all such other reasonable lawful actions reasonably necessary to expedite and facilitate the disposition by the Investor Holder of the its Registrable Securities in accordance with the intended methods therefor provided in the Prospectus which are customary under the circumstances; and
(i) Make reasonably available for inspection by Holder, any underwriter participating in any disposition pursuant to the Registration Statement, and any attorney, accountant or other agent retained by such Investors or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and (ii) cause the Company's officers, directors and employees to supply all information reasonably requested by Holder or any such underwriter, attorney, accountant or agent in connection with the Registration Statement, in each case, as is customary for similar due diligence examinations; provided, however, that all records, information and documents that are designated in writing by the Company, in good faith, as confidential, proprietary or containing any material nonpublic information shall be kept confidential by such Investors and any such underwriter, attorney, accountant or agent (pursuant to an appropriate confidentiality agreement in the case of any such holder or agent), unless such disclosure is made pursuant to judicial process in a court proceeding (after first giving the Company an opportunity promptly to seek a protective order or otherwise limit the scope of the information sought to be disclosed) or is required by law, or such records, information or documents become available to the public generally or through a third party not in violation of an accompanying obligation of confidentiality; and provided, further, that, if the foregoing inspection and information gathering would otherwise disrupt the Company's conduct of its business, such inspection and information gathering shall, to the maximum extent possible, be coordinated on behalf of the Investors and the other parties entitled thereto by one firm of counsel designed by and on behalf of the majority in interest of Investors and other parties.
Appears in 2 contracts
Samples: Warrant Agreement (Cavit Sciences, Inc.), Warrant Agreement (Cavit Sciences, Inc.)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptly, and file with the SEC by the Required Filing Date, Date a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, times during the period (the "Registration Period") continuing until the earlier of (i) the date when the Investor Investors may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (ii) the date the Investor Investors no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor Initial Investors (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx Prager LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business daysTrading Days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the each Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days Trading Days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day Trading Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the InvestorInvestors); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish communicate with the Investor's Counsel with copies of all intended regard to its proposed written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of ), so that, to the filing of such responses with extent practicable, the SEC so that the Investor Investors shall have the opportunity to comment thereon;
(e) Furnish to the each Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(f) As promptly as practicable after becoming aware thereof, notify the each Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;
(g) [intentionally omitted ]As promptly as practicable after becoming aware thereof, notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of a Notice of Effectiveness or any notice of effectiveness or any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time;
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Notwithstanding the foregoing, if at any time or from time to time after the date of effectiveness of the Registration Statement, the Company notifies the Investors in writing that the effectiveness of the Registration Statement is suspended for any reason, whether due to a Potential Material Event or otherwise, the Investors shall not offer or sell any Registrable Securities, or engage in any other transaction involving or relating to the Registrable Securities, from the time of the giving of such notice until such Investor receives written notice from the Company that such the effectiveness of the Registration Statement has been restored, whether because the Potential Material Event has been disclosed to the public or it no longer constitutes a Potential Material Event or otherwise; PROVIDED, HOWEVER, that the Company may not so suspend the right to such holders of Registrable Securities during the periods the Registration Statement is required to be in effect other than during a Permitted Suspension Period (and the applicable provisions of Section 2(b) shall apply with respect to any such suspension other than during a Permitted Suspension Period);
(j) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(jk) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(kl) Cooperate with the Investor Investors who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor Investors may reasonably request, and, within five (5) business days Trading Days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such Registration Statement) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including Securities(including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable lawlaw and other rules and regulations, including, without limitation, prospectus delivery requirements; and;
(lm) Take all other reasonable administrative steps and actions (including the participation of Company counsel) necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement; provided, however, that the foregoing does not require that the Company take any steps whatsoever regarding the identification or selection of a broker to sell the Registrable Securities, the identification of buyers of the Registrable Securities, or the negotiation of the sale terms of the Registrable Securities; and
(n) Not file any other registration statement (other than the Registration Statement and amendments thereto) during the period commencing on the Closing Date and ending on the Effective Date.
Appears in 2 contracts
Samples: Registration Rights Agreement (Amedia Networks, Inc.), Registration Rights Agreement (Ambient Corp /Ny)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptly, and file with the SEC by the Required Filing Date, Date a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, times during the period (the "Registration Period") continuing until the earlier of (i) the date when the Investor Investors may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (ii) the date the Investor Investors no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor Initial Investors (which, until further notice, shall be deemed to be Xxxxxxx Krieger & Xxxxxx Prager LLP, Attn: Xxxxxx XxxxxxxSamuel Xxxxxer, EsqXxx., which firm has requested firx xxx xxxxxxxxx to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the each Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the InvestorInvestors); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor Investors shall have the opportunity to comment thereon;
(e) Furnish to the each Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(f) As promptly as practicable after becoming aware thereof, notify the each Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;
(g) [intentionally omitted ]As promptly as practicable after becoming aware thereof, notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of a Notice of Effectiveness or any notice of effectiveness or any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time;
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company, under circumstances that would violate Regulation FD;
(i) Use its reasonable efforts Notwithstanding the foregoing, if at any time or from time to secure and maintain time after the designation date of all effectiveness of the Registrable Securities covered by Registration Statement, the Company notifies the Investors in writing that the effectiveness of the Registration Statement on is suspended for any reason, whether due to a Potential Material Event or otherwise, the Principal Trading Market and Investors shall not offer or sell any Registrable Securities, or engage in any other transaction involving or relating to the quotation Registrable Securities, from the time of the Registrable Securities on giving of such notice until such Investor receives written notice from the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery Company that such effectiveness of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable has been restored, whether because the Potential Material Event has been disclosed to the public or it no longer constitutes a Potential Material Event or otherwise; provided, however, that the Company may not so suspend the right to such certificates for the holders of Registrable Securities during the periods the Registration Statement is required to be in effect other than during a Permitted Suspension Period (and the applicable provisions of Section 2(b) shall apply with respect to any such denominations or amounts as the case may besuspension other than during a Permitted Suspension Period) . The term "Permitted Suspension Period" means up to two such suspension periods during any consecutive 12-month period, as the Investor may reasonably request, and, within each of which suspension period shall not either (i) be for more than five (5) days or (ii) begin less than ten (10) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor last day of the Registrable Securities pursuant to the Registration Statement.preceding suspension (whether or not such last day was during or after a Permitted Suspension Period);
Appears in 2 contracts
Samples: Securities Purchase Agreement (Remote MDX Inc), Securities Purchase Agreement (Remote MDX Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followinguse all commercially reasonable efforts to:
(a) Prepare promptlySubject to the provisions of Section 3(q) hereof, promptly (i) prepare and file with the SEC by Commission such amendments (including post-effective amendments) to the Required Filing Date, a Registration Statement with respect and supplements to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts Prospectus as may be necessary to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement continuously effective at all times, other than during Permitted Suspension Periods, during and in compliance with the provisions of the Securities Act applicable thereto so as to permit the Prospectus forming part thereof to be current and useable by Investors for resales of the Registrable Securities for a period of thirty months from the date the Registration Statement is first declared effective by the Commission (the "“Effective Time”) or such shorter period that will terminate when all the Registrable Securities covered by the Registration Statement have been sold pursuant thereto in accordance with the plan of distribution provided in the Prospectus or otherwise cease to be Registrable Securities (the “Registration Period"”) continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or and (ii) take all lawful action such that each of (A) the date Registration Statement and any amendment thereto does not, when it becomes effective, 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 Investor no longer own any statements therein, not misleading and (B) the Prospectus forming part of the Registrable SecuritiesRegistration Statement, which and any amendment or supplement thereto, does not at any time during the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any Period 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, in light of the circumstances in under which they were made, not misleading. Notwithstanding the foregoing, the Company’s obligations hereunder shall terminate as to any investor at such time as that Investor’s Registrable Securities can be sold under Rule 144(k);
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during During the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Investors as set forth in the Prospectus forming part of the Registration Statement;
(ci) Permit a single firm of counsel designated by Prior to the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file Commission of any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (including any amendments thereto) and the distribution or delivery of any Prospectus (including any supplements thereto), provide draft copies or, thereof (including a copy of the accountant’s consent letter to be included in the case of oral commentsfiling) to the Investors and Stonegate Securities, summaries of Inc. (“Stonegate”) and reflect in such documents all such comments shall be promptly furnished by as the Company Investors and Stonegate reasonably may propose (including comments as to the InvestorInvestors’ plans of distribution); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC or any other Federal or state governmental authority furnish to Stonegate for amendments or supplements delivery to the Registration Statement or Prospectus or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement covering any or all of the each Investor whose Registrable Securities or the initiation of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained are included in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (iA) promptly after the same is prepared and publicly distributed, filed with the SECCommission, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectusProspectus, and each amendment or supplement thereto, and (iiB) such number of copies of a prospectus, the Prospectus and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(fd) (i) Register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of all jurisdictions requiring blue sky registration or qualification, (ii) prepare and file in such jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be reasonably necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take all such other lawful actions as may be reasonably necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all such other lawful actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection with any of its obligations under this Section 3(d) to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (B) subject itself to general taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(e) As promptly as practicable after becoming aware thereofof such event, notify the each Investor of the happening occurrence of any event of which the Company has knowledgeevent, as a result of which the prospectus Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts and promptly to prepare a supplement or an amendment to the Registration Statement or other appropriate filing with and supplement to the SEC Prospectus to correct such untrue statement or omission, and deliver a number of copies of such supplement or and amendment to the each Investor as the such Investor may reasonably request;
(gf) [intentionally omitted ]
Notify each Investor who holds Registrable Securities being sold (hor, in the event of an underwritten offering, the managing underwriters) Comply with Regulation FD of the issuance by the Commission of any stop order or other suspension of the effectiveness of the Registration Statement on the date of receipt of any similar rule such stop order or regulation regarding the dissemination of information regarding the Companyother suspension, and in furtherance take all lawful action to effect the withdrawal, recession or removal of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Companysuch stop order or other suspension;
(ig) Use its reasonable efforts to secure and maintain the designation of Cause all the Registrable Securities covered by the Registration Statement to be listed, not later than the date that Registration Statement is declared effective by the Commission, on the Principal Trading Market and the a principal national securities exchange, or included in an inter-dealer quotation system of a registered national securities association, on or in which securities of the Registrable same class or series issued by the Company are then listed or included; deliver to the New York Stock Exchange copies of the Prospectus that constitute part of the effective Registration Statement in satisfaction of Rule 153 under the Securities on Act; and use reasonable best efforts during the Principal Trading MarketRegistration Period to continue to meet the requirements for use of Form S-3 for registration of its shares;
(jh) Provide Maintain a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(ki) Cooperate Reasonably cooperate with the Investor Investors who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investor Investors reasonably may reasonably request and registered in such names as the Investors may request, ; and, within five (5) three business days after a Registration Statement registration statement which includes Registrable Securities is ordered declared effective by the SECCommission, the Company shall deliver, deliver and shall cause legal counsel selected by the Company to deliver, deliver to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such registration statement) an appropriate instruction and and, to the extent necessary, an opinion of such counsel;
(j) Take all such other lawful actions reasonably necessary to expedite and facilitate the disposition by the Investors of their Registrable Securities in accordance with the intended methods therefor provided in the Prospectus which are customary under the circumstances;
(k) Make generally available to its security holders as soon as practicable, but in any event not later than three (3) months after (i) the effective date (as defined in Rule 158(c) under the Securities Act) of the Registration Statement, and (ii) the effective date of each post-effective amendment to the Registration Statement, as the case may be, an earnings statement of the Company and its subsidiaries complying with Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(l) In the event of an underwritten offering, promptly include or incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the managers reasonably agree should be included therein and to which the Company does not reasonably object and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after it is notified of the matters to be included or incorporated in such Prospectus supplement or post-effective amendment;
(m) In connection with any underwritten offering, make such representations and warranties to the Investors participating in such underwritten offering and to the managers, in form, substance and scope as are customarily made by the Company to underwriters in secondary underwritten offerings;
(n) In connection with any underwritten offering, obtain opinions of counsel to the Company (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managers) addressed to the underwriters, covering such matters as are customarily covered in opinions requested in secondary underwritten offerings (it being agreed that the matters to be covered by such opinions shall include, without limitation, directions to as of the Transfer Agent to issue certificates date of Registrable Securities (the opinion and as of the date the Registration Statement is first declared effective or most recent post- effective amendment thereto, as the case may be, the absence from the Registration Statement and the Prospectus, including certificates for Registrable Securities any documents incorporated by reference therein, of an untrue statement of a material fact or the omission of a material fact required to be issued after stated therein or necessary to make the Effective Date and replacement certificates for Registrable Securities previously issuedstatements therein (in the case of the Prospectus, in light of the circumstances under which they were made) without legends or other restrictionsnot misleading, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; andcustomary limitations);
(lo) Take all other reasonable actions necessary to expedite In connection with any underwritten offering, obtain “cold comfort” letters and facilitate disposition updates thereof from the independent public accountants of the Company (and, if necessary, from the independent public accountants of any subsidiary of the Company or of any business acquired by the Investor of the Registrable Securities pursuant Company, in each case for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each underwriter participating in such underwritten offering (if such underwriter has provided such letter, representations or documentation, if any, required for such cold comfort letter to be so addressed), in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with secondary underwritten offerings;
(p) In connection with any underwritten offering, deliver such documents and certificates as may be reasonably required by the managers, if any;
(q) Notwithstanding anything to the contrary in Section 3, at any time after the Registration Statement has been declared effective, the Company may delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Board of Directors of the Company and its counsel, in the best interest of the Company (a “Grace Period”); provided, that the Company shall promptly (i) notify the Investors in writing of the existence of material non-public information giving rise to a Grace Period and the date on which the Grace Period will begin, and (ii) notify the Investors in writing in advance of, or on the same date on which, the Grace Period ends; and, provided further, that during the Registration Period, there shall be only three Grace Periods (not to exceed 30 days each) nor more than one Grace Period (not to exceed 30 days each) in any six-month period. For purposes of determining the length of a Grace Period above, the Grace Period shall begin on and include the date the holders receive the notice referred to in clause (i) and shall end on and include the date specified as the Grace Period ending date in the notice referred to in clause (ii). Notwithstanding the foregoing, the Company shall have no obligations under Section 3(l) through (p) unless it is effecting an underwritten offering pursuant to Section 2(b).
Appears in 2 contracts
Samples: Stock Purchase Agreement (Airnet Systems Inc), Stock Purchase Agreement (Airnet Systems Inc)
Obligations of the Company. In connection with the registration any Registration of the Registrable SecuritiesSecurities hereunder, the Company shall do each of have the followingfollowing obligations:
(a) Prepare a. The Company shall prepare promptly, and file with the SEC by as soon as practicable after such registration obligation arises hereunder (but in no event later than the Required applicable Filing DateDeadline), a such Registration Statement Statements with respect to not less than the number of Registrable Securities as provided in Section 2(a) above), and thereafter use its reasonable best efforts to cause each such Registration Statement relating to Registrable Securities to become effective by as soon as possible after such filing, but in any event shall use its reasonable best efforts to cause each such Registration Statement relating to Registrable Securities to become effective no later than the Required Effective Date applicable Registration Deadline, and shall use its reasonable best efforts to keep the Registration Statement current and effective pursuant to Rule 415 at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing times after its effective date until such date as is the earlier of (i) the date when on which all of the Investor may sell all Registrable Securities under included in such Registration Statement have been sold pursuant to such Registration Statement or pursuant to Rule 144 without volume or other restrictions or limits or and (ii) the first date following the Investor no longer own any first anniversary of the Closing Date on which all of the Registrable SecuritiesSecurities included in such Registration Statement (in the opinion of counsel to the Investors) may be immediately sold to the public without registration or restriction (including without limitation as to volume by each holder thereof), and without compliance with any “current public information” requirement, pursuant to Rule 144 under the Securities Act, assuming, in the case of the Warrants, the exercise thereof for cash (the “Registration Period”), which Registration Statement (including any amendments or supplements thereto and prospectuses Prospectuses contained therein) therein or related thereto), except for information provided in writing by an Investor pursuant to Section 4(a), shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in light therein not misleading. In the event that Form S-3 is not available for the registration of the circumstances resale of any Registrable Securities hereunder (but, for the avoidance of doubt, without in which they were madeany way affecting the Company’s obligation to Register the resale of the Registrable Securities on such other form as is available, not misleading;as provided in Section 2(a)), (i) the Company shall undertake to file, within twenty (20) days of such time as such form is available for such Registration, a post-effective amendment to the Registration Statement then in effect, or otherwise file a Registration Statement on Form S-3, registering such Registrable Securities on Form S-3; provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement (or post-effective amendment) on Form S-3 covering such Registrable Securities has been declared effective by the SEC, and (ii) the Company shall provide that any Registration Statement on Form S-1 filed hereunder shall incorporate documents by reference (including by way of forward incorporation by reference) to the maximum extent possible.
(b) Prepare b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the each Registration Statement and the prospectus Prospectus used in connection with the each Registration Statement as may be necessary to keep the each Registration Statement current and effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, shall comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the each Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; . In the event that on any Trading Day (Cas defined below) whenever (the Company receives (or a representative “Registration Trigger Date”) the number of shares available under the Registration Statements filed pursuant to this Agreement is insufficient to cover all of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies orRegistrable Securities, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement covering any or including all of the Registrable Securities issued or issuable upon exercise or conversion of, or otherwise pursuant to or in respect of, the initiation Series B Notes and the Warrants (including, for the avoidance of doubt, any proceedings for Additional Anti-dilution Shares that purpose; (iv) if at any time any of the representations become issuable or warranties of the Company contained are issued in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (vaccordance with Section 14.02(n) of the receipt by the Company of any notification with Indenture in respect to the suspension of the qualification Series B Notes 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 (viSection 4(g) of the occurrence of any event that Warrants), without giving effect to the best knowledge Beneficial Ownership Cap, the Beneficial Ownership Limitation, the NYSE Share Cap, the Remaining NYSE Share Cap Amount (in each case, as applicable), or any other limitations on the Investors’ ability to convert the Series B Notes or exercise the Warrants (and assuming the exercise of the Company 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 light of the circumstances under which they were made, not misleading. In additionWarrants for cash), the Company shall furnish amend the Investor's Counsel with copies Registration Statements, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover the total number of all intended written responses Registrable Securities so issued or issuable (without giving effect to the comments contemplated Beneficial Ownership Cap, the Beneficial Ownership Limitation, the NYSE Share Cap, the Remaining NYSE Share Cap Amount (in clause each case, as applicable), or any other limitations on the Investors’ ability to convert the Series B Notes or exercise the Warrants (C) of this Section 3(d) not later than one (1) business day in advance and assuming the exercise of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(eWarrants for cash) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy as of the Registration StatementTrigger Date as soon as practicable, each preliminary prospectus and prospectusbut in any event within twenty (20) days after the Registration Trigger Date. The Company shall use its reasonable best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof, and each but in any event the Company shall cause such amendment or supplement thereto, and and/or new Registration Statement to become effective within sixty (ii60) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the Investor may reasonably request in order to facilitate the disposition days of the Registrable Securities owned by the Investor;
(f) As Registration Trigger Date or as promptly as practicable after becoming aware thereof, notify in the Investor of event the happening of Company is required to increase its authorized shares. “Trading Day” shall mean any event of day on which the Company has knowledgeCommon Stock is traded for any period on the New York Stock Exchange or, as a result of if not the New York Stock Exchange, the principal securities exchange or other securities market on which the prospectus included in the Registration Statement, as Common Stock is then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statementbeing traded.
Appears in 2 contracts
Samples: Registration Rights Agreement (Invitae Corp), Registration Rights Agreement (Invitae Corp)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(a) Prepare promptly, Promptly (i) prepare and file with the SEC by Commission such amendments (including post-effective amendments) to the Required Filing Date, a Registration Statement with respect and supplements to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts Prospectus as may be necessary to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement continuously effective at all times, other than during Permitted Suspension Periods, during and in compliance with the provisions of the Securities Act applicable thereto so as to permit the Prospectus forming part thereof to be current and useable by Investors for resales of the Registrable Securities for a period of five years from the date on which the Registration Statement is first declared effective by the Commission (the "Registration PeriodEFFECTIVE TIME") continuing until or such shorter period that will terminate when all the earlier of (i) the date when the Investor may sell all Registrable Securities under covered by the Registration Statement have been sold pursuant thereto in accordance with the plan of distribution provided in the Prospectus, transferred pursuant to Rule 144 without volume under the Securities Act or other otherwise transferred in a manner that results in the delivery of new securities not subject to transfer restrictions or limits or under the Securities Act (the "REGISTRATION PERIOD") and (ii) take all lawful action such that each of (A) the date Registration Statement and any amendment thereto does not, when it becomes effective, 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 Investor no longer own any statements therein, not misleading and (B) the Prospectus forming part of the Registrable SecuritiesRegistration Statement, which and any amendment or supplement thereto, does not at any time during the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any Period 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, in light of the circumstances in under which they were made, not misleading;.
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during During the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Investors as set forth in the Prospectus forming part of the Registration Statement;
(ci) Permit Prior to the filing with the Commission of any Registration Statement (including any amendments thereto) and the distribution or delivery of any Prospectus (including any supplements thereto), provide (A) draft copies thereof to the Investors and reflect in such documents all such comments as the Investors (and their counsel) reasonably may propose and (B) to the Investors a single firm copy of counsel designated by the Investor (which, until further notice, shall be deemed accountant's consent letter to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested included in the filing and (ii) furnish to receive such notification; each, an "Investor's Counsel") to review each Investor whose Registrable Securities are included in the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such its legal counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment identified to the Registration Statement is proposed to be filed; Company, (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (iA) promptly after the same is prepared and publicly distributed, filed with the SECCommission, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectusProspectus, and each amendment or supplement thereto, and (iiB) such number of copies of a prospectus, the Prospectus and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(f) As promptly as practicable after becoming aware thereof, notify the Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation of all Register or qualify the Registrable Securities covered by the Registration Statement on under such securities or "blue sky" laws of such jurisdictions as the Principal Trading Market and the quotation Investors who hold a majority-in-interest of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be being offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and(ii) prepare and file in such jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, within five (5iii) business days after a take all such other lawful actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliverPeriod, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investoriv) an appropriate instruction and opinion of take all such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable lawful actions reasonably necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement.or
Appears in 2 contracts
Samples: Registration Rights Agreement (Wareforce Com Inc), Registration Rights Agreement (Wareforce Com Inc)
Obligations of the Company. In connection with Subject to the registration receipt of all necessary information from all of the Registrable SecuritiesInvestors, the Company shall do each of the followingshall:
(a) Prepare promptly, use its commercially reasonable efforts to prepare and file with the SEC by SEC, within 30 business days after the First Closing (the “Required Filing Date”), a registration statement to enable the resale of the Shares and Warrant Shares acquired or to be acquired pursuant to this Agreement by the Investors (the “Registration Statement”); provided, however, that the Company may defer filing the Registration Statement to ensure compliance with respect to not less than the number Rule 3-12 of Registrable Securities provided in Section 2(aRegulation S-X;
(b) above, and thereafter use its commercially reasonable best efforts to cause such the Registration Statement relating to Registrable Securities to become effective as soon as practicable, but in no event later than ninety (90) days after the date of the First Closing, or one hundred and twenty (120) days after the date of the First Closing in the event the Registration Statement is reviewed by the SEC (as applicable, the “Required Effective Date”);
(c) make compensatory payments to the Investor in the event the Registration Statement has not been declared effective by the SEC after the Required Effective Date and keep (each payment, a “Late Registration Payment”), provided however, that no further Late Registration Payments shall accrue once the Registration Statement has been initially declared effective at all timesby the SEC; each Late Registration Payment is (1) equal to 1% of the Purchase Price paid for the Shares (it being understood that in no event shall any payment hereunder accrue as to the Warrants or the Warrant Shares) purchased by the Investor and not previously sold by the Investor for each 30 day period after the Required Effective Date, other than during Permitted Suspension Periodspro rated by the number of days elapsed in the applicable 30 day Late Registration Payment period, during and (2) payable to the period (the "Registration Period") continuing until Investor by wire transfer or check within five business days after the earlier of (i) the date when end of each 30 day period following the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits Required Effective Date or (ii) the effective date the Investor no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleadingStatement;
(bd) Prepare keep such Registration Statement effective for a period of up to two years, or such lesser period of time as all of the Shares have been sold or can be sold without restriction under Rule 144;
(e) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the such Registration Statement and the prospectus used in connection with the such Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities securities covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(cf) Permit a single firm of counsel designated by the furnish to each Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number numbers of copies of a prospectus, and all amendments and supplements thereto including a preliminary prospectus, in conformity with the requirements of the Act, and such other documents, documents as the Investor they may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Investor;
(f) As promptly as practicable after becoming aware thereof, notify the Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably requestsecurities;
(g) [intentionally omitted ]use commercially reasonable efforts to register and qualify the securities covered by such Registration Statement under such other securities or Blue Sky laws of such jurisdictions as shall be requested by each Investor; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions, unless the Company is already subject to service in such jurisdiction and except as may be required by the Act; and
(h) Comply with Regulation FD or any similar rule or regulation regarding cause all such securities registered pursuant hereunder to be listed, prior to the dissemination of information regarding the Company, and in furtherance date of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation first sale of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered such securities pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may beregistration, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement on each securities exchange on which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected similar securities issued by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statementare then listed.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Curon Medical Inc), Stock Purchase Agreement (Curon Medical Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of have the followingfollowing obligations:
(a) Prepare promptly, The Company shall prepare and file with the SEC by the Required Filing Date, a Registration Statement in accordance with respect to not less than the number of Registrable Securities provided in Section 2(a) above2, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date as soon as practicable after such filing, and keep the such Registration Statement effective pursuant to Rule 415 at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing times until such date as is the earlier of (i) the date when on which all of the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or have been sold and (ii) the date the Investor no longer own any on which all of the Registrable SecuritiesSecurities (in the opinion of counsel to the Investors, which shall be sought upon the request of the Company) may be immediately sold to the public without registration or restriction pursuant to Rule 144(k) under the Securities Act or any successor provision (the “Registration Period”), which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein and all documents incorporated by reference therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements thereintherein not misleading, and (iii) shall comply in all material respects with the requirements of the Securities Act and the rules and regulations of the SEC promulgated thereunder. The financial statements of the Company included in the Registration Statement or incorporated by reference therein will comply in all material respects with the applicable accounting requirements and the published rules and regulations of the SEC applicable with respect thereto. Such financial statements will be prepared in accordance with U.S. generally accepted accounting principles, consistently applied, during the periods involved (except in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed on summary statements) and fairly present in all material respects the consolidated financial position of the Company and its consolidated subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in light the case of the circumstances in which they were madeunaudited statements, not misleading;to immaterial year-end adjustments).
(b) Prepare The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Periodsuch period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until the earlier of (i) such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;Statement or (ii) the expiration of the Registration Period.
(c) Permit a single firm of counsel designated by the The Company shall furnish to each Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review whose Registrable Securities are included in the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such its legal counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration StatementStatement and any amendment thereto, each preliminary prospectus and prospectus, prospectus and each amendment or supplement thereto, and, in the case of the Registration Statement referred to in Section 2(a), each letter written by or on behalf of the Company to the SEC or the staff of the SEC (including, without limitation, any request to accelerate the effectiveness of the Registration Statement or amendment thereto), and each item of correspondence from the SEC or the staff of the SEC, in each case relating to the Registration Statement (other than any portion, if any, thereof which contains information for which the Company has sought confidential treatment), (ii) on the date of effectiveness of the Registration Statement or any amendment thereto, a notice stating that the Registration Statement or amendment has been declared effective, and (iiiii) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto and such other documents, documents as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;.
(fd) The Company shall (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” laws of such jurisdictions in the United States as each Investor who holds Registrable Securities being offered reasonably requests, (ii) prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (B) subject itself to general taxation in any such jurisdiction, (C) file a general consent to service of process in any such jurisdiction, (D) provide any undertakings that cause the Company undue expense or burden, or (E) make any change in its charter or bylaws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its shareholders.
(e) As promptly as practicable after becoming aware thereofof such event, the Company shall notify the each Investor of the happening of any event event, of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading, and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a such number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;.
(f) The Company shall use reasonable best efforts (i) to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, and, if such an order is issued, to obtain the withdrawal of such order at the earliest practicable moment (including in each case by amending or supplementing such Registration Statement) and (ii) to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof (and if such Registration Statement is supplemented or amended, deliver such number of copies of such supplement or amendment to each Investor as such Investor may reasonably request).
(g) [intentionally omitted ]The Company shall permit a single firm of counsel designated by the Investors to review the Registration Statement and all amendments and supplements thereto a reasonable period of time prior to its filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
(h) Comply with Regulation FD or any similar rule or regulation regarding At the dissemination request of information regarding an Investor in the case of an underwritten public offering, the Company shall furnish, on the date of effectiveness of the Registration Statement (i) an opinion, dated as of such date, from counsel representing the Company addressed to each Investor and in form, scope and substance as is customarily given in an underwritten public offering and (ii) a letter, dated such date, from the Company’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 underwriters, if any, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;each Investor.
(i) Use The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement, (iii) the release of such information is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction, (iv) such information has been made generally available to the public other than by the Company or disclosure in violation of this or any other agreement, or (v) such Investor consents to the form and content of any such disclosure. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor prior to making such disclosure, and allow the Investor, at its reasonable efforts expense, to secure and maintain undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
(j) The Company shall, prior to the designation declaration of effectiveness of any registration statement covering Registrable Securities, cause all of the Registrable Securities covered by the Registration Statement to be listed, at its option, on the Principal Trading Market and the quotation any national securities exchange on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities on is then permitted under the Principal Trading Market;rules of such exchange.
(jk) Provide The Company shall provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;Securities.
(kl) Cooperate The Company shall cooperate with the Investor Investors who hold Registrable Securities being offered and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates for the (not bearing any restrictive legends) representing Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investor managing underwriter or underwriters, if any, or the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request, and, within five (5) business days after a the Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent transfer agent for the Registrable Securities (with copies to the Investor) Investors whose Registrable Securities are included in such Registration Statement), an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions counsel in the form reasonably satisfactory to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statementtransfer agent.
Appears in 2 contracts
Samples: Secured Credit Facility and Warrant Purchase Agreement (Environmental Tectonics Corp), Secured Credit Facility and Warrant Purchase Agreement (Environmental Tectonics Corp)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(a) Prepare promptly, Promptly (i) prepare and file with the SEC by Commission such amendments (including post-effective amendments) to the Required Filing Date, a Registration Statement with respect and supplements to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts Prospectus as may be necessary to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement continuously effective at and in compliance with the provisions of the Securities Act applicable thereto so as to permit the Prospectus forming part thereof to be current and useable by Investors for resales of the Registrable Securities for a period of five years from the date on which the Registration Statement is first declared effective by the Commission (the "Effective Time") or such shorter period that will terminate when all timesthe Registrable Securities covered by the Registration Statement have been sold pursuant thereto in accordance with the plan of distribution provided in the Prospectus, other than during Permitted Suspension Periods, during transferred pursuant to Rule 144 under the period Securities Act or otherwise transferred in a manner that results in the delivery of new securities not subject to transfer restrictions under the Securities Act (the "Registration Period"); however, if such Registration Statement is not continuously effective (A) continuing until throughout the earlier entire five year period commencing on the Effective Time or (B) for the Registration Period, whichever period is shorter, the Company agrees to pay the Holder the Liquidated Damage Rate of (i) 2% of the date when Stated Value of the Investor outstanding Preferred Shares for each 30 day period in which the Registration Statement is not effective during the Effective Time or the Registration Period, whichever may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or be shorter, and (ii) take all lawful action such that each of (A) the date Registration Statement and any amendment thereto does not, when it becomes effective, 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 Investor no longer own any statements therein, not misleading and (B) the Prospectus forming part of the Registrable SecuritiesRegistration Statement, which and any amendment or supplement thereto, does not at any time during the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any Period 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, in light of the circumstances in under which they were made, not misleading. Notwithstanding the foregoing provisions of this Section 3(a), the Company may, during the Registration Period, suspend the use of the Prospectus for a period not to exceed 60 days (whether or not consecutive) in any 12-month period if the Board of Directors of the Company determines in good faith that because of valid business reasons, including pending mergers or other business combination transactions, the planned acquisition or divestiture of assets, pending material corporate developments and similar events, it is in the best interests of the Company to suspend such use, and prior to or contemporaneously with suspending such use the Company provides the Investors with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. At the end of any such suspension period, the Company shall provide the Investors with written notice of the termination of such suspension;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during During the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Investors as set forth in the Prospectus forming part of the Registration Statement;
(ci) Permit Prior to the filing with the Commission of any Registration Statement (including any amendments thereto) and the distribution or delivery of any Prospectus (including any supplements thereto), provide (A) draft copies thereof to the Investors and reflect in such documents all such comments as the Investors (and their counsel) reasonably may propose and (B) to the Investors a single firm copy of counsel designated by the Investor (which, until further notice, shall be deemed accountant's consent letter to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested included in the filing and (ii) furnish to receive such notification; each, an "Investor's Counsel") to review each Investor whose Registrable Securities are included in the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such its legal counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment identified to the Registration Statement is proposed to be filed; Company, (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (iA) promptly after the same is prepared and publicly distributed, filed with the SECCommission, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectusProspectus, and each amendment or supplement thereto, and (iiB) such number of copies of a prospectus, the Prospectus and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(fi) Register or qualify the Registrable Securities covered by the Registration Statement under such securities or "blue sky" laws of such jurisdictions as the Investors who hold a majority-in-interest of the Registrable Securities being offered reasonably request, (ii) prepare and file in such jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take all such other lawful actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all such other lawful actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (B) subject itself to general taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(e) As promptly as practicable after becoming aware thereofof such event, notify the each Investor of the happening occurrence of any event of which the Company has knowledgeevent, as a result of which the prospectus Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts and promptly to prepare a supplement or an amendment to the Registration Statement or other appropriate filing with and supplement to the SEC Prospectus to correct such untrue statement or omission, and deliver a number of copies of such supplement or and amendment to the each Investor as the such Investor may reasonably request;
(gf) [intentionally omitted ]
As promptly as practicable after becoming aware of such event, notify each Investor who holds Registrable Securities being sold (hor, in the event of an underwritten offering, the managing underwriters) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoingissuance by the Commission of any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time and take all lawful action to effect the withdrawal, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Companyrecession or removal of such stop order or other suspension;
(ig) Use its reasonable efforts to secure and maintain the designation of Cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Market principal national securities exchange, and the included in an inter-dealer quotation system of a registered national securities association, on or in which securities of the Registrable Securities on same class or series issued by the Principal Trading MarketCompany are then listed or included;
(jh) Provide Maintain a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(ki) Cooperate with the Investor Investors who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investors reasonably may request and registered in such names as the Investor may reasonably request, ; and, within five (5) three business days after a Registration Statement registration statement which includes Registrable Securities is ordered declared effective by the SECCommission, the Company shall deliver, deliver and shall cause legal counsel selected by the Company to deliver, deliver to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such registration statement) an appropriate instruction and and, to the extent necessary, an opinion of such counsel;
(j) Take all such other lawful actions reasonably necessary to expedite and facilitate the disposition by the Investors of their Registrable Securities in accordance with the intended methods therefor provided in the Prospectus which are customary under the circumstances;
(k) Make generally available to its security holders as soon as practicable, but in any event not later than three (3) months after (i) the effective date (as defined in Rule 158(c) under the Securities Act) of the Registration Statement, and (ii) the effective date of each post-effective amendment to the Registration Statement, as the case may be, an earnings statement of the Company and its subsidiaries complying with Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(l) In the event of an underwritten offering, promptly include or incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the managers reasonably agree should be included therein and to which the Company does not reasonably object and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after it is notified of the matters to be included or incorporated in such Prospectus supplement or post-effective amendment;
(i) Make reasonably available for inspection by Investors, any underwriter participating in any disposition pursuant to the Registration Statement, and any attorney, accountant or other agent retained by such Investors or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and (ii) cause the Company's officers, directors and employees to supply all information reasonably requested by such Investors or any such underwriter, attorney, accountant or agent in connection with the Registration Statement, in each case, as is customary for similar due diligence examinations; provided, however, that all records, information and documents that are designated in writing by the Company, in good faith, as confidential, proprietary or containing any material nonpublic information shall be kept confidential by such Investors and any such underwriter, attorney, accountant or agent (pursuant to an appropriate confidentiality agreement in the case of any such holder or agent), unless such disclosure is made pursuant to judicial process in a court proceeding (after first giving the Company an opportunity promptly to seek a protective order or otherwise limit the scope of the information sought to be disclosed) or is required by law, or such records, information or documents become available to the public generally or through a third party not in violation of an accompanying obligation of confidentiality; and provided, further, that, if the foregoing inspection and information gathering would otherwise disrupt the Company's conduct of its business, such inspection and information gathering shall, to the maximum extent possible, be coordinated on behalf of the Investors and the other parties entitled thereto by one firm of counsel designated by and on behalf of the majority in interest of Investors and other parties;
(n) In connection with any underwritten offering, make such representations and warranties to the Investors participating in such underwritten offering and to the managers, in form, substance and scope as are customarily made by the Company to underwriters in secondary underwritten offerings;
(o) In connection with any underwritten offering, obtain opinions of counsel to the Company (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managers) addressed to the underwriters, covering such matters as are customarily covered in opinions requested in secondary underwritten offerings (it being agreed that the matters to be covered by such opinions shall include, without limitation, directions to as of the Transfer Agent to issue certificates date of Registrable Securities (the opinion and as of the Effective Time of the Registration Statement or most recent post-effective amendment thereto, as the case may be, the absence from the Registration Statement and the Prospectus, including certificates for Registrable Securities any documents incorporated by reference therein, of an untrue statement of a material fact or the omission of a material fact required to be issued after stated therein or necessary to make the Effective Date and replacement certificates for Registrable Securities previously issuedstatements therein (in the case of the Prospectus, in light of the circumstances under which they were made) without legends or other restrictionsnot misleading, subject to compliance customary limitations);
(p) In connection with applicable lawany underwritten offering, obtain "cold comfort" letters and updates thereof from the independent public accountants of the Company (and, if necessary, from the independent public accountants of any subsidiary of the Company or of any business acquired by the Company, in each case for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each underwriter participating in such underwritten offering (if such underwriter has provided such letter, representations or documentation, if any, required for such cold comfort letter to be so addressed), in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with secondary underwritten offerings;
(q) In connection with any underwritten offering, deliver such documents and certificates as may be reasonably required by the managers, if any; and
(r) In the event that any broker-dealer registered under the Exchange Act shall be an "Affiliate" (as defined in Rule 2729(b)(1) of the rules and regulations of the National Association of Securities Dealers, Inc. (the "NASD Rules") (or any successor provision thereto)) of the Company or has a "conflict of interest" (as defined in Rule 2720(b)(7) of the NASD Rules (or any successor provision thereto)) and such broker-dealer shall underwrite, participate as a member of an underwriting syndicate or selling group or assist in the distribution of any Registrable Securities covered by the Registration Statement, whether as a holder of such Registrable Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company shall assist such broker-dealer in complying with the requirements of the NASD Rules, including, without limitation, prospectus delivery requirements; and
by (lA) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor engaging a "qualified independent underwriter" (as defined in Rule 2720(b)(15) of the NASD Rules (or any successor provision thereto)) to participate in the preparation of the Registration Statement relating to such Registrable Securities pursuant Securities, to exercise usual standards of due diligence in respect thereof and to recommend the public offering price of such Registrable Securities, (B) indemnifying such qualified independent underwriter to the Registration Statementextent of the indemnification of underwriters provided in Section 6 hereof, and (C) providing such information to such broker-dealer as may be required in order for such broker-dealer to comply with the requirements of the NASD Rules.
Appears in 2 contracts
Samples: Securities Exchange Agreement (Chell Group Corp), Securities Exchange Agreement (Chell Group Corp)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptly, The Company shall prepare and file with the SEC by the Required Filing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter and, thereafter, use its reasonable best all diligent efforts to cause such the Registration Statement relating to the Registrable Securities to become effective by the Required earlier of (a) five (5) business days after notice from the SEC that the Registration Statement may be declared effective, or (b) the Effective Date Date, and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing times until the earlier earliest of (i) the date that is eighteen (18) months after the last Closing Date under the Equity Credit Agreement, (ii) the date when the Investor may sell all Registrable Securities under Rule 144 144(k) without volume or other restrictions or limits limitations, or (iiiii) the date the Investor no longer own owns any of the Registrable SecuritiesSecurities (collectively, which the "Registration Period"). The Registration Statement (including any amendments or supplements supplements, thereto and prospectuses Prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in under which they were made, not misleading;.
(b) Prepare The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus Prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, it shall comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all the expiration of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;Period.
(c) Permit The Company shall permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines ; it being understood that such document is required by law review and objections shall relate exclusively to be so filed;matters in the Registration Statement or omitted therefrom affecting any or all of the Equity Credit Agreement, Investor and the Registrable Securities or compliance with the terms of this Agreement or the other Transaction Documents.
(d) Notify the The Company shall notify Investor and the Investor's Counsel and any managing underwriters immediately legal counsel identified to the Company (which, until further notice, shall be deemed to be Xxxxxxx & Prager, LLP, ATTN: Xxxxxx Xxxxxxx, Esq.; "Investor's Counsel") (and, in the case of (i)(A) below, not less than three five (35) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(Ai): (A) when a Prospectus prospectus or any Prospectus prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; and (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or the Prospectus or for additional information; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company makes any statement made in the Registration Statement or the 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, the 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. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;.
(e) Furnish The Company shall furnish to the Investor and to Investor's Counsel Counsel, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus Prospectus and prospectusthe Prospectus, and each amendment or supplement thereto, all correspondence to, with, or from the SEC, and (ii) such number of copies of a prospectusProspectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents, as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Investor;.
(f) As The Company shall use all diligent efforts to (i) register and/or qualify the Registrable Securities covered by the Registration Statement under such other securities or blue sky laws of such jurisdictions as the Investor may reasonably request and in which significant volumes of shares of Common Stock are traded, (ii) prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualification in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions: provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(f), (B) subject itself to general taxation in any such jurisdiction, (C) file a general consent to service of process in any such jurisdiction, (D) provide any undertakings that cause more than nominal expense or burden to the Company or (E) make any change in its charter or by-laws or any then existing contracts.
(g) The Company shall, as promptly as practicable after becoming aware thereofof such event, notify the Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus Prospectus included in the Registration Statement, as then in effect, includes an any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, subject to Section 4(cmisleading ("Registration Default"), and use its best efforts to promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and any other necessary steps to cure the Registration Default, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;
(g) [intentionally omitted ].
(h) Comply with Regulation FD The Company shall, as promptly as practicable after becoming aware of such event, notify the Investor (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of any notice of effectiveness or any similar rule stop order or regulation regarding the dissemination of information regarding the Company, and in furtherance other suspension of the foregoing, and not in limitation thereof, not disclose to effectiveness of the Investor any non-public material information regarding the Company;Registration Statement.
(i) Use its reasonable efforts Notwithstanding the foregoing, if at any time or from time to secure and maintain time after the designation date of all effectiveness of the Registration Statement, the Company notifies Investor in writing of the existence of a Potential Material Event ("Blackout Notice"), Investor shall not offer or sell any Registrable Securities, or engage in any other transaction involving or relating to the Registrable Securities, from the time of the giving of notice with respect to a Potential Material Event until Investor receives written notice (the "Blackout End Notice") from the Company that such Potential Material Event either has been disclosed to the public or no longer constitutes a Potential Material Event (the period from the Investor's receipt of the Blackout Notice until the Blackout End Notice, "Blackout Period"); provided, however, that the Company may not so suspend or delay the right of the Investor to sell the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation other than during a Permitted Suspension Period. The term "Permitted Suspension Period" means up to two Blackout Periods during any consecutive 12-month period, each of the Registrable Securities on the Principal Trading Market;
which Blackout Period shall not either (ji) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later more than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days or (ii) begin less than ten (10) Trading Days after the last day of the preceding suspension (whether or not such last day was during or after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, Permitted Suspension Period); and provided further that the Company shall delivershall, and shall cause legal counsel selected by the Company if lawful to deliverdo so, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by provide the Investor with at least two (2) business days' notice of the Registrable Securities pursuant to existence (but not the Registration Statementsubstance) of a Potential Material Event.
Appears in 2 contracts
Samples: Registration Rights Agreement (NCT Group Inc), Private Equity Credit Agreement (NCT Group Inc)
Obligations of the Company. In connection with the registration any Registration of the Registrable SecuritiesSecurities hereunder, the Company shall do each of have the followingfollowing obligations:
(a) Prepare a. The Company shall prepare promptly, and file with the SEC by as soon as practicable after such registration obligation arises hereunder (but in no event later than the Required applicable Filing DateDeadline), a such Registration Statement Statements with respect to not less than the number of Registrable Securities as provided in Section 2(a) above), and thereafter use its reasonable best efforts to cause each such Registration Statement relating to Registrable Securities to become effective by as soon as possible after such filing, but in any event shall use its reasonable best efforts to cause each such Registration Statement relating to Registrable Securities to become effective no later than the Required Effective Date applicable Registration Deadline, and shall use its reasonable best efforts to keep the Registration Statement current and effective pursuant to Rule 415 at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing times after its effective date until such date as is the earlier of (i) the date when on which all of the Investor may sell all Registrable Securities under included in such Registration Statement have been sold pursuant to such Registration Statement or pursuant to Rule 144 without volume or other restrictions or limits or and (ii) the first date following the Investor no longer own any first anniversary of the Closing Date on which all of the Registrable SecuritiesSecurities included in such Registration Statement (in the opinion of counsel to the Investors) may be immediately sold to the public without registration or restriction (including without limitation as to volume by each holder thereof), and without compliance with any “current public information” requirement, pursuant to Rule 144 under the Securities Act, assuming, in the case of the Warrants, the exercise thereof for cash (the “Registration Period”), which Registration Statement (including any amendments or supplements thereto and prospectuses Prospectuses contained therein) therein or related thereto), except for information provided in writing by an Investor pursuant to Section 4(a), shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in light therein not misleading. In the event that Form S-3 is not available for the registration of the circumstances resale of any Registrable Securities hereunder (but, for the avoidance of doubt, without in which they were madeany way affecting the Company’s obligation to Register the resale of the Registrable Securities on such other form as is available, not misleading;as provided in Section 2(a)), (i) the Company shall undertake to file, within twenty (20) days of such time as such form is available for such Registration, a post-effective amendment to the Registration Statement then in effect, or otherwise file a Registration Statement on Form S-3, registering such Registrable Securities on Form S-3; provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement (or post-effective amendment) on Form S-3 covering such Registrable Securities has been declared effective by the SEC, and (ii) the Company shall provide that any Registration Statement on Form S-1 filed hereunder shall incorporate documents by reference (including by way of forward incorporation by reference) to the maximum extent possible.
(b) Prepare b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the each Registration Statement and the prospectus Prospectus used in connection with the each Registration Statement as may be necessary to keep the each Registration Statement current and effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, shall comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the each Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; . In the event that on any Trading Day (Cas defined below) whenever (the Company receives (or a representative “Registration Trigger Date”) the number of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to shares available under the Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements Statements filed pursuant to the Registration Statement or Prospectus or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement covering any or this Agreement is insufficient to cover all of the Registrable Securities Securities, (without giving effect to the Beneficial Ownership Limitation or any other limitations on the initiation of any proceedings for that purpose; Investors’ ability to exercise the Warrants (iv) if at any time any and assuming the exercise of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities Warrants for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose; and (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In additioncash)), the Company shall furnish amend the Investor's Counsel with copies Registration Statements, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover the total number of all intended written responses Registrable Securities so issued or issuable (without giving effect to the comments contemplated in clause Beneficial Ownership Limitation or any other limitations on the Investors’ ability to exercise the Warrants (C) of this Section 3(d) not later than one (1) business day in advance and assuming the exercise of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(eWarrants for cash)) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy as of the Registration StatementTrigger Date as soon as practicable, each preliminary prospectus and prospectusbut in any event within twenty (20) days after the Registration Trigger Date. The Company shall use its reasonable best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof, and each but in any event the Company shall cause such amendment or supplement thereto, and and/or new Registration Statement to become effective within sixty (ii60) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the Investor may reasonably request in order to facilitate the disposition days of the Registrable Securities owned by the Investor;
(f) As Registration Trigger Date or as promptly as practicable after becoming aware thereof, notify in the Investor of event the happening of Company is required to increase its authorized shares. “Trading Day” shall mean any event of day on which the Company has knowledgeCommon Stock is traded for any period on the Nasdaq Global Market or, as a result of if not the Nasdaq Global Market, the principal securities exchange or other securities market on which the prospectus included in the Registration Statement, as Common Stock is then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statementbeing traded.
Appears in 2 contracts
Samples: Registration Rights Agreement (NanoString Technologies Inc), Registration Rights Agreement (NanoString Technologies Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptly, and file with the SEC by the later of (x) the Required Filing Date and (y) five business days after the Certificate of Incorporation Amendment Filing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (ii) the date the Investor no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx Kxxxxxx & Xxxxxx Pxxxxx LLP, Attn: Xxxxxx Sxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(f) As promptly as practicable after becoming aware thereof, notify the Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the InvestorInvestor whose Registrable Securities are included in such Registration Statement) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Advanced Technology Industries Inc), Registration Rights Agreement (Advanced Technology Industries Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(aA) Prepare promptly, Promptly (i) prepare and file with the SEC by Commission such amendments (including post-effective amendments) to the Required Filing Date, a Registration Statement with respect and supplements to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts Prospectus as may be necessary to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement continuously effective at all times, other than during Permitted Suspension Periods, during and in compliance with the provisions of the Securities Act applicable thereto so as to permit the Prospectus forming part thereof to be current and useable by Investors for resales of the Registrable Securities for a period of five (5) years from the date on which the Registration Statement is first declared effective by the Commission (the "Registration PeriodEFFECTIVE TIME") continuing until or such shorter period that will terminate when all the earlier of (i) the date when the Investor may sell all Registrable Securities under covered by the Registration Statement have been sold pursuant thereto in accordance with the plan of distribution provided in the Prospectus, transferred pursuant to Rule 144 without volume under the Securities Act or other otherwise transferred in a manner that results in the delivery of new securities not subject to transfer restrictions or limits or under the Securities Act (the "REGISTRATION PERIOD") and (ii) take all lawful action such that each of (A) the date Registration Statement and any amendment thereto does not, when it becomes effective, 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 Investor no longer own any statements therein, not misleading and (B) the Prospectus forming part of the Registrable SecuritiesRegistration Statement, which and any amendment or supplement thereto, does not at any time during the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any Period 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, in light of the circumstances in under which they were made, not misleading;
(bB) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during During the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Investors as set forth in the Prospectus forming part of the Registration Statement;
(ci) Permit Prior to the filing with the Commission of any Registration Statement (including any amendments thereto) and the distribution or delivery of any Prospectus (including any supplements thereto), provide (A) draft copies thereof to the Investors and reflect in such documents all such comments as the Investors (and their counsel) reasonably may propose and (B) to the Investors a single firm copy of counsel designated by the Investor (which, until further notice, shall be deemed accountant's consent letter to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested included in the filing and (ii) furnish to receive such notification; each, an "Investor's Counsel") to review each Investor whose Registrable Securities are included in the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such its legal counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment identified to the Registration Statement is proposed to be filed; Company, (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (iA) promptly after the same is prepared and publicly distributed, filed with the SECCommission, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectusProspectus, and each amendment or supplement thereto, thereto and (iiB) such number of copies of a prospectus, the Prospectus and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(fD) (i) Register or qualify the Registrable Securities covered by the Registration Statement under such securities or "blue sky" laws of such jurisdictions as the Investors who hold a majority-in-interest of the Registrable Securities being offered reasonably request, (ii) prepare and file in such jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take all such other lawful actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period and (iv) take all such other lawful actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(D), (B) subject itself to general taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(E) As promptly as practicable after becoming aware thereofof such event, notify the each Investor of the happening occurrence of any event of which the Company has knowledgeevent, as a result of which the prospectus Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts and promptly to prepare a supplement or an amendment to the Registration Statement or other appropriate filing with and supplement to the SEC Prospectus to correct such untrue statement or omission, and deliver a number of copies of such supplement or and amendment to the each Investor as the such Investor may reasonably request;
(gF) [intentionally omitted ]
As promptly as practicable after becoming aware of such event, notify each Investor who holds Registrable Securities being sold (hor, in the event of an underwritten offering, the managing underwriters) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoingissuance by the Commission of any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time and take all lawful action to effect the withdrawal, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Companyrecession or removal of such stop order or other suspension;
(iG) Use its reasonable efforts to secure and maintain the designation of Cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Market principal national securities exchange, and the included in an inter-dealer quotation system of a registered national securities association, on or in which securities of the Registrable Securities on same class or series issued by the Principal Trading MarketCompany are then listed or included;
(jH) Provide Maintain a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(kI) Cooperate with the Investor Investors who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement registration statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investors reasonably may request and registered in such names as the Investor may reasonably request, ; and, within five three (53) business days after a Registration Statement registration statement which includes Registrable Securities is ordered declared effective by the SECCommission, the Company shall deliver, deliver and shall cause legal counsel selected by the Company to deliver, deliver to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such registration statement) an appropriate instruction and and, to the extent necessary, an opinion of such counsel;
(J) Take all such other lawful actions reasonably necessary to expedite and facilitate the disposition by the Investors of their Registrable Securities in accordance with the intended methods therefor provided in the Prospectus which are customary under the circumstances;
(K) Make generally available to its security holders as soon as practicable, but in any event not later than three (3) months after (i) the effective date (as defined in Rule 158(c) under the Securities Act) of the Registration Statement and (ii) the effective date of each post-effective amendment to the Registration Statement, as the case may be, an earnings statement of the Company and its subsidiaries complying with Section 11 (a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(L) In the event of an underwritten offering, promptly include or incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the managers reasonably agree should be included therein and to which the Company does not reasonably object and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after it is notified of the matters to be included or incorporated in such Prospectus supplement or post-effective amendment;
(i) Make reasonably available for inspection by Investors, any underwriter participating in any disposition pursuant to the Registration Statement, and any attorney, accountant or other agent retained by such Investors or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and (ii) cause the Company's officers, directors and employees to supply all information reasonably requested by such Investors or any such underwriter, attorney, accountant or agent in connection with the Registration Statement, in each case, as is customary for similar due diligence examinations; provided, however, that all records, information and documents that are designated in writing by the Company, in good faith, as confidential, proprietary or containing any material nonpublic information shall be kept confidential by such Investors and any such underwriter, attorney, accountant or agent (pursuant to an appropriate confidentiality agreement in the case of any such holder or agent), unless such disclosure is made pursuant to judicial process in a court proceeding (after first giving the Company an opportunity promptly to seek a protective order or otherwise limit the scope of the information sought to be disclosed) or is required by law, or such records, information or documents become available to the public generally or through a third party not in violation of an accompanying obligation of confidentiality; and provided, further, that, if the foregoing inspection and information gathering would otherwise disrupt the Company's conduct of its business, such inspection and information gathering shall, to the maximum extent possible, be coordinated on behalf of the Investors and the other parties entitled thereto by one firm of counsel designed by and on behalf of the majority in interest of Investors and other parties;
(N) In connection with any underwritten offering, make such representations and warranties to the Investors participating in such underwritten offering and to the managers, in form, substance and scope as are customarily made by the Company to underwriters in secondary underwritten offerings;
(O) In connection with any underwritten offering, obtain opinions of counsel to the Company (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managers) addressed to the underwriters, covering such matters as are customarily covered in opinions requested in secondary underwritten offerings (it being agreed that the matters to be covered by such opinions shall include, without limitation, directions to as of the Transfer Agent to issue certificates date of Registrable Securities (the opinion and as of the Effective Time of the Registration Statement or most recent post-effective amendment thereto, as the case may be, the absence from the Registration Statement and the Prospectus, including certificates for Registrable Securities any documents incorporated by reference therein, of an untrue statement of a material fact or the omission of a material fact required to be issued after stated therein or necessary to make the Effective Date and replacement certificates for Registrable Securities previously issuedstatements therein (in the case of the Prospectus, in light of the circumstances under which they were made) without legends or other restrictionsnot misleading, subject to compliance customary limitations);
(P) In connection with applicable lawany underwritten offering, obtain "cold comfort" letters and updates thereof from the independent public accountants of the Company (and, if necessary, from the independent public accountants of any subsidiary of the Company or of any business acquired by the Company, in each case for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each underwriter participating in such underwritten offering (if such underwriter has provided such letter, representations or documentation, if any, required for such cold comfort letter to be so addressed), in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with secondary underwritten offerings;
(Q) In connection with any underwritten offering, deliver such documents and certificates as may be reasonably required by the managers, if any, and
(R) In the event that any broker-dealer registered under the Exchange Act shall be an "AFFILIATE" (as defined in Rule 2729(b)(1) of the rules and regulations of the National Association of Securities Dealers, Inc. (the "NASD RULES") (or any successor provision thereto)) of the Company or has a "CONFLICT OF INTEREST" (as defined in Rule 2720(b)(7) of the NASD Rules (or any successor provision thereto)) and such broker-dealer shall underwrite, participate as a member of an underwriting syndicate or selling group or assist in the distribution of any Registrable Securities covered by the Registration Statement, whether as a holder of such Registrable Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company shall assist such broker-dealer in complying with the requirements of the NASD Rules, including, without limitation, prospectus delivery requirements; and
by (lA) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor engaging a "QUALIFIED INDEPENDENT UNDERWRITER" (as defined in Rule 2720(b)(15) of the NASD Rules (or any successor provision thereto)) to participate in the preparation of the Registration Statement relating to such Registrable Securities pursuant Securities, to exercise usual standards of due diligence in respect thereof and to recommend the public offering price of such Registrable Securities, (B) indemnifying such qualified independent underwriter to the Registration Statementextent of the indemnification of underwriters provided in Section 6 hereof and (C) providing such information to such broker-dealer as may be required in order for such broker-dealer to comply with the requirements of the NASD Rules.
Appears in 2 contracts
Samples: Registration Rights Agreement (Us Dataworks Inc), Registration Rights Agreement (One Voice Technologies Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(a) Prepare promptly, promptly (i) prepare and file with the SEC by Commission such amendments (including post-effective amendments) to the Required Filing Date, a Registration Statement with respect and supplements to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts Prospectus as may be necessary to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement continuously effective at and in compliance with the provisions of the Securities Act applicable thereto so as to permit the Prospectus forming a part thereof to be current and useable by Purchasers for resales of the Registrable Securities for a period of two years from the date on which the Registration Statement is first declared effective by the Commission (the "Effective Time") or such shorter period that will terminate when all timesthe Registrable Securities covered by the Registration Statement have been (A) sold pursuant thereto in accordance with the plan of distribution provided in the Prospectus, other than during Permitted Suspension Periods, during (B) transferred pursuant to Rule 144 under the period Securities Act or (C) otherwise transferred in a manner that results in the delivery of new securities not subject to transfer restrictions under the Securities Act (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or ), and (ii) take all lawful action such that each of (A) the date Registration Statement and any amendment thereto does not, when it becomes effective, 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 Investor no longer own any statements therein, not misleading, and (B) the Prospectus forming part of the Registrable SecuritiesRegistration Statement, which and any amendment or supplement thereto, does not at any time during the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any Period 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, in light of the circumstances in under which they were made, not misleading. Notwithstanding the foregoing provisions of this Section 3(a), the Company may, during the Registration Period, suspend the use of the Prospectus for a period not to exceed 60 days (whether or not consecutive) in any 12-month period if the Board of Directors of the Company determines in good faith that because of valid business reasons, including pending mergers or other business combination transactions, planned acquisitions or divestitures of assets, or pending material corporate developments and similar events, it is in the best interests of the Company to suspend such use, and prior to or contemporaneously with suspending such use the Company provides the Purchasers with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. At the end of any such suspension period, the Company shall provide the Purchasers with written notice of the termination of such suspension. The Company covenants and agrees that it shall not suspend use of any Prospectus according to the above terms unless Company employees, officers and directors and their affiliates and any other holders of registration rights with respect to the Company's stock would, under applicable law, also be prohibited from effecting any public sales of shares of Company stock beneficially owned by them for the duration of such period. The Company represents that it has no knowledge of any circumstance that would reasonably be expected at the time of the filing of the Registration Statement pursuant to Section 2 to cause the Company to exercise its rights under this Section 3(a);
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Purchasers as set forth in the Prospectus forming part of the Registration Statement;
(ci) Permit a single firm prior to the filing with the Commission of counsel designated by the Investor Registration Statement (whichincluding any amendments thereto) and the distribution or delivery of any Prospectus (including any supplements thereto), until further notice, shall be deemed provide draft copies thereof to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested the Purchasers and reflect in such documents all such comments as the Purchasers (and their counsel) reasonably may propose and (ii) furnish to receive such notification; each, an "Investor's Counsel") to review each Purchaser whose Registrable Securities are included in the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such its legal counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment identified to the Registration Statement is proposed to be filed; Company, (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (iA) promptly after the same is prepared and publicly distributed, filed with the SECCommission, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectusProspectus, and each amendment or supplement thereto, and (iiB) such number of copies of a prospectus, the Prospectus and all amendments and supplements thereto thereto, and such other documents, as the Investor such Purchaser may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Investorsuch Purchaser;
(fi) As register and qualify the Registrable Securities covered by the Registration Statement under such securities or "blue sky" laws of such U.S. jurisdictions as a Purchaser who holds Registrable Securities being offered may reasonably request as necessary or advisable in connection with the sale of such Securities, (ii) prepare and file in such jurisdictions such amendments (including post effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take all such other lawful actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all such other lawful actions as may be reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (B) subject itself to general taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(e) as promptly as practicable after becoming aware thereofof such event, notify the Investor each Purchaser of the happening occurrence of any event of which the Company has knowledgeevent, as a result of which the prospectus Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts and promptly to prepare a supplement or an amendment to the Registration Statement or other appropriate filing with and supplement to the SEC Prospectus to correct such untrue statement or omission, and deliver a such number of copies of such supplement or and amendment to the Investor each Purchaser as the Investor such Purchaser may reasonably request;
(gf) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination as promptly as practicable after becoming aware of information regarding the Companysuch event, and in furtherance notify each Purchaser who holds Registrable Securities being sold of the foregoing, issuance by the Commission of any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use use its reasonable efforts to secure effect the withdrawal, recession or removal of such stop order or other suspension;
(g) upon the Commission declaring effective any Registration Statement relating to the offer and maintain the designation sale of all the Registrable Securities covered by Securities, use its reasonable efforts to cause the Registration Statement listing of the Preferred Stock on the Principal Trading Market and New York Stock Exchange, Inc. (the "NYSE") or, if the Preferred Stock shall not then be eligible for listing on the NYSE, to apply for listing of the Preferred Stock on the American Stock Exchange, Inc. (the "AMEX") or, if the Preferred Stock shall not then be eligible for listing on the AMEX, to apply for quotation of the Preferred Stock through the National Association of Securities Dealers, Inc. Automated Quotation System (the date of any such listing, the "Listing Date"); provided, however, that the Company, on the Listing Date, shall be entitled to discontinue the trading of the Registrable Securities on The PortalSM Market, a subsidiary of the Principal Trading Nasdaq Stock Market, Inc.;
(jh) Provide subsequent to the Listing Date, maintain a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective DatePreferred Stock;
(ki) Cooperate cooperate with the Investor Purchasers who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investor Purchasers reasonably may reasonably request and registered in such names as the Purchasers may request, ; and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by at the SECEffective Time, the Company shall deliver, deliver and shall cause legal counsel selected by the Company to deliver, deliver to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorPurchasers whose Registrable Securities are included in the Registration Statement) an appropriate instruction and opinion of such counsel;
(j) use its reasonable efforts to expedite and facilitate the disposition by the Purchasers of their Registrable Securities in accordance with the intended methods therefor provided in the Prospectus;
(k) make generally available to its securityholders as soon as practicable, which shall includebut in any event not later than 18 months after (i) the effective date (as defined in Rule 158(c) under the Securities Act) of the Registration Statement, without limitation, directions (ii) the effective date of each post-effective amendment to the Transfer Agent to issue certificates Registration Statement, and (iii) the date of Registrable each filing by the Company with the Commission of its Annual Report on Form 10-K, an earnings statement of the Company and its subsidiaries complying with Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitationat the option of the Company, prospectus delivery requirementsRule 158);
(l) enter into such customary agreements and use its reasonable efforts to expedite and facilitate the registration and disposition of the Registrable Securities; and
(li) Take make reasonably available for inspection by Purchasers and any attorney, accountant or other agent retained by such Purchasers all relevant financial and other reasonable actions necessary to expedite records, pertinent corporate documents and facilitate disposition by the Investor properties of the Registrable Securities pursuant Company and its subsidiaries, and (ii) cause the Company's officers, directors and employees to supply all information reasonably requested by such Purchasers, attorney, accountant or agent in connection with the Registration Statement, in each case, as is customary for similar due diligence examinations; provided, however, that all records, information and documents that are designated in writing by the Company as confidential, proprietary or containing any material non-public information shall be kept confidential by such Purchasers, attorney, accountant or agent, unless such disclosure is made pursuant to judicial process in a court proceeding (after first giving the Company an opportunity promptly to seek a protective order or otherwise limit the scope of the information sought to be disclosed) or is required by law, or such records, information or documents become available to the public generally or through a third party not in violation of an accompanying obligation of confidentiality; and provided further that, if the foregoing inspection and information gathering would otherwise disrupt the Company's conduct of its business, such inspection and information gathering shall, to the maximum extent possible, be coordinated on behalf of the Purchasers and the other parties entitled thereto by one legal counsel designated by and on behalf of the Purchasers.
Appears in 2 contracts
Samples: Registration Rights Agreement (Urstadt Biddle Properties Inc), Registration Rights Agreement (Urstadt Biddle Properties Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of have the followingfollowing obligations:
(a) Prepare promptlySubject to any Allowed Delay, the Company shall (i) prepare and deliver to each Investor a draft of the Registration Statement accompanied or preceded by a Selling Shareholder Questionnaire and (ii) file with the SEC by the Required Filing Date, a Registration Statement with the SEC, in each case, in accordance with the provisions of Section 2(a) hereof with respect to not less than the number of Registrable Securities provided in Section 2(a) above), and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and as soon as practicable after such filing, and, subject to any Allowed Delay, keep the Registration Statement effective pursuant to Rule 415 at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing times until such date as is the earlier of (i) the date when on which all of the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or have been sold and (ii) the date the Investor no longer own any of on which the Registrable SecuritiesSecurities (in the opinion of counsel to the Initial Investors or of legal counsel to the Company) may be immediately sold without restriction (including without limitation as to volume by each holder thereof including under Rule 144(k)) without registration under the 1933 Act (the "REGISTRATION PERIOD"), which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in light of the circumstances in which they were made, therein not misleading;.
(b) Prepare Subject to any Allowed Delay, the Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities 1933 Act applicable to the Company with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated . In the event that Rule 416 is determined by the Investor (which, until further notice, shall be deemed SEC not to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, permit the registration of an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period indeterminate number of time (but not less than three (3) business days) prior to their filing with the SECshares, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case number of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of shares available under a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company filed pursuant to the Investor); and (D) with respect this Agreement is insufficient to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement covering any or cover all of the Registrable Securities issued or the initiation of any proceedings for that purpose; (iv) if at any time any issuable upon conversion of the representations Preferred Stock or warranties exercise of the Warrants, the Company contained shall amend the Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as reasonably practicable, but in any agreement event within twenty (including any underwriting agreement20) contemplated hereby ceases to be true and correct in all material respects; business days after the necessity therefor arises (v) based on the market price of the receipt by Common Stock and other relevant factors on which the Company reasonably elects to rely). The Company shall use its best efforts to cause such amendment and/or new Registration Statement to become effective as soon as reasonably practicable following the filing thereof. The provisions of any notification Section 2(c) above shall be applicable with respect to such obligation, with the suspension of one hundred twenty (120) days running from the qualification day after the date on which the Company reasonably first determines (or exemption from qualification of any of reasonably should have determined) the need therefor.
(c) The Company shall furnish to each Investor whose Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose; and (vi) of the occurrence of any event that to the best knowledge of the Company makes any statement made are included 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel its legal counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration StatementStatement and any amendment thereto, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and, in the case of the Registration Statement referred to in Section 2(a), each letter written by or on behalf of the Company 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 (other than any portion of any thereof which contains information for which the Company has sought confidential treatment), and (ii) such number of copies of a prospectus, prospectus and all amendments and supplements thereto and such other documents, documents as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Investor. The Company will promptly notify each Investor by facsimile of the Investor;effectiveness of the Registration Statement or any post-effective amendment. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing any Registration Statement or any amendment thereto to be declared effective by the SEC as soon as reasonably practicable and shall promptly file an acceleration request as soon as reasonably practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that the Registration Statement or any amendment thereto will not be subject to review.
(fd) The Company shall use commercially reasonable efforts to (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold a majority-in-interest of the Registrable Securities being offered reasonably request, (ii) prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (a) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (b) subject itself to general taxation in any such jurisdiction, (c) file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause the Company undue expense or burden, or (e) make any change in its charter or bylaws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders.
(e) As promptly as practicable after becoming aware thereof, notify the Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes would then include an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading, andthe Company shall notify each Investor of the happening of such event, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a such number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;. Notwithstanding the provisions of the preceding sentence, for not more than fifteen (15) consecutive trading days (or a total of not more than thirty (30) trading days in any twelve (12) month period), the Company may delay the disclosure of material non-public information concerning the Company (as well as prospectus or Registration Statement updating) the disclosure of which at the time is not, in the good faith opinion of the Company in the best interests of the Company (an "ALLOWED DELAY"); provided, that the Company shall promptly (i) notify the Investors in writing of the existence of (but in no event, without the prior written consent of an Investor, shall the Company disclose to such investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay and (ii) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay. Upon expiration of the Allowed Delay, the Company shall again be bound by the first sentence of this Section 3(e) with respect to the information giving rise thereto.
(f) The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, and, if such an order is issued, to obtain the withdrawal of such order at the earliest possible moment and to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof.
(g) [intentionally omitted ]The Company shall permit a single firm of counsel designated by the Initial Investors to review the Registration Statement and all amendments and supplements thereto (as well as all requests for acceleration or effectiveness thereof) a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects and will not request acceleration of the Registration Statement without prior notice to such counsel. The sections of the Registration Statement covering information with respect to the Investors, the Investor's beneficial ownership of securities of the Company or the Investors intended method of disposition of Registrable Securities shall conform to the information provided to the Company by each of the Investors.
(h) Comply with Regulation FD or any similar rule or regulation regarding The Company shall make generally available to its securities holders as soon as practical, but not later than ninety (90) days after the dissemination of information regarding the Company, and in furtherance close of the foregoingperiod covered thereby, and not an earnings statement (in limitation thereof, not disclose to form complying with the Investor any nonprovisions of Rule 158 under the 0000 Xxx) covering a twelve-public material information regarding month period beginning after the Company;effective date of the Registration Statement.
(i) Use The Company shall make available for inspection by (i) any Investor, (ii) any underwriter participating in any disposition pursuant to the Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Initial Investors, (iv) one firm of attorneys and one firm of accountants or other agents retained by all other Investors, and (v) one firm of attorneys retained by all such underwriters (collectively, the "INSPECTORS") all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the "RECORDS"), as shall be reasonably deemed necessary by each Inspector to enable each Inspector to exercise its reasonable efforts due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in confidence and shall not make any disclosure (except to an Investor) of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (a) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement, (b) the release of such Records is ordered pursuant to a subpoena or other order from a court or government body of competent jurisdiction, or (c) the information in such Records has been made generally available to the public other than by disclosure in violation of this or any other agreement. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto. Each Investor agrees that it shall, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidential. Nothing herein (or in any other confidentiality agreement between the Company and any Investor) shall be deemed to limit the Investor's ability to sell Registrable Securities in a manner which is otherwise consistent with applicable laws and regulations.
(j) The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement, (iii) the release of such information is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction, or (iv) such information has been made generally available to the public other than by disclosure in violation of this or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor prior to making such disclosure, and allow the Investor, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
(k) The Company shall (i) cause all the Registrable Securities covered by the Registration Statement to be listed on each national securities exchange on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (ii) secure and maintain the designation and quotation, of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and NNM or, if not then eligible for the quotation NNM on the NSM and, without limiting the generality of the foregoing, to arrange for at least two market makers to register with the National Association of Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securities on the Principal Trading Market;Securities.
(jl) Provide The Company shall provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor date of the Registrable Securities pursuant to the Registration Statement.Xxxxxxxxxxxx
Appears in 1 contract
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of have the followingfollowing obligations:
(a) Prepare promptly, The Company shall prepare and file promptly with the SEC by the Required Filing DateSEC, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above), and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date as soon as possible after such filing, and keep the Registration Statement effective pursuant to Rule 415 at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing times until such date as is the earlier of (i) the date when on which all of the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or have been sold and (ii) the date the Investor no longer own any of on which the Registrable SecuritiesSecurities (in the opinion of counsel to the Initial Investors) may be immediately sold without registration (the "Registration Period"), which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein and all documents incorporated by reference therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in light of the circumstances in which they were made, therein not misleading;.
(b) Prepare The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Periodsuch period, comply with the provisions of the Securities 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm . In the event the number of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of shares available under a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company filed pursuant to the Investor); and (D) with respect this Agreement is insufficient to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement covering any or cover all of the Registrable Securities issued or the initiation of any proceedings for that purpose; (iv) if at any time any issuable upon conversion of the representations or warranties of Preferred Stock, the Company contained in any agreement shall amend the Registration Statement, or file a new Registration Statement (including any underwriting agreement) contemplated hereby ceases on the short form available therefore, if applicable), or both, so as to be true and correct in cover all material respects; (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale Securities, in each case, as soon as practicable, but in any jurisdiction, or event within fifteen (15) days after the initiation or threatening of any proceeding for such purpose; and necessity therefor arises (vi) based on the market price of the occurrence of any event that to the best knowledge of Common Stock and other relevant factors on which the Company makes any statement made reasonably elects to rely). The Company shall use its best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof.
(c) The Company shall furnish to each Investor whose Registrable Securities are included 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel its legal counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration StatementStatement and any amendment thereto, each preliminary prospectus and prospectus, prospectus and each amendment or supplement thereto, and, in the case of the Registration Statement referred to in Section 2(a), each letter written by or on behalf of the Company 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 (other than any portion thereof which contains information for which the Company 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, documents as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;.
(fd) The Company shall use reasonable efforts to (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold a majority in interest of the Registrable Securities being offered reasonably request, (ii) prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (a) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (b) subject itself to general taxation in any such jurisdiction, (c) file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause the Company undue expense or burden, or (e) make any change in its charter or bylaws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders.
(e) As promptly as practicable after becoming aware thereofof such event, the Company shall notify the each Investor of the happening of any event event, of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a such number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;.
(f) The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, and, if such an order is issued, to obtain the withdrawal of such order at the earliest possible moment and to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof.
(g) [intentionally omitted ]The Company shall permit a single firm of counsel designated by the Initial Investors to review the Registration Statement and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects.
(h) Comply The Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with Regulation FD or any similar rule or regulation regarding the dissemination provisions of information regarding Rule 158 under the 0000 Xxx) covering a twelve-month period beginning not later than the first day of the Company, and in furtherance 's fiscal quarter next following the effective date of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;Registration Statement.
(i) Use The Company shall make available for inspection by (i) any Investor, (ii) any underwriter participating in any disposition pursuant to the Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Initial Investors, and (iv) one firm of attorneys retained by all such underwriters (collectively, the "Inspectors") all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the "Records"), as shall be reasonably deemed necessary by each Inspector to enable each Inspector to exercise its reasonable due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in confidence and shall not make any disclosure (except to an Investor) of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (a) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement, (b) the release of such Records is ordered pursuant to a subpoena or other order from a court or government body of competent jurisdiction, or (c) the information in such Records has been made generally available to the public other than by disclosure in violation of this or any other agreement. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3(i). Each Investor agrees that it shall, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidential. Nothing herein shall be deemed to limit the Investor's ability to sell Registrable Securities in a manner which is otherwise consistent with applicable laws and regulations.
(j) The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement, (iii) the release of such information is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction, or (iv) such information has been made generally available to the public other than by disclosure in violation of this or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor prior to making such disclosure, and allow the Investor, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
(k) The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by the Registration Statement to be listed on the NYSE or the AMEX or another national securities exchange and on each additional national securities exchange on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (ii) secure and maintain the designation and quotation, of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and NASDAQ-NMS or, if not eligible for the quotation NASDAQ-NMS on the NASDAQ Small Cap and, without limiting the generality of the foregoing, to arrange for or maintain at least two market makers to register with the National Association of Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securities on the Principal Trading Market;Securities.
(jl) Provide The Company shall provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;effective date of the Registration Statement.
(km) Cooperate The Company shall cooperate with the Investor Investors who hold Registrable Securities being offered and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates for the (not bearing any restrictive legends) representing Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investor managing underwriter or underwriters, if any, or the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Oxis International Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of have the followingfollowing obligations:
(a) Prepare a. The Company shall prepare promptly, and file with the SEC by as soon as reasonably practicable after the Required Termination Date (but no later than the Filing Date), a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above), and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by as soon as reasonably practicable after such filing (but in no event later than one hundred eighty (180) days after the Required Effective Date Termination Date), and keep the Registration Statement effective pursuant to Rule 415 at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing times until such date as is the earlier of (i) the date when on which all of the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or have been sold and (ii) the date the Investor no longer own any of on which the Registrable SecuritiesSecurities (in the reasonable opinion of counsel to E-Stamp, which opinion shall not be unreasonably withheld or delayed) may be immediately sold to the public without registration or restriction (including without limitation as to volume by each holder thereof) under the 1933 Act (the "REGISTRATION PERIOD"), which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in light of the circumstances in which they were made, therein not misleading;.
(b) Prepare b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement Statements and the prospectus used in connection with the Registration Statement Statements as may be necessary to keep the Registration Statement Statements effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Periodsuch period, comply with the provisions of the Securities 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement Statements until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;Statements.
(c) Permit c. The Company shall furnish to each Investor whose Registrable Securities are included in a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such its legal counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the each Registration StatementStatement and any amendment thereto, each preliminary prospectus and prospectus, prospectus and each amendment or supplement thereto, and, in the case of the Registration Statement referred to in Section 2(a), each letter written by or on behalf of the Company 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 (other than any portion thereof which contains information for which the Company has sought confidential treatment or which the Company reasonably deems to be material, non-public information), and (ii) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto and such other documents, documents as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(f) As promptly as practicable after becoming aware thereof, . The Company will immediately notify the each Investor by facsimile of the happening effectiveness of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the each Registration Statement or other appropriate filing any post-effective amendment. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC to correct as soon as practicable and shall file an acceleration request as soon as practicable, but no later than three (3) business days (the "ACCELERATION REQUEST DEADLINE"), following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD Registration Statement or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and amendment thereto will not in limitation thereof, not disclose be subject to the Investor any non-public material information regarding the Company;review.
d. The Company shall use reasonable efforts to (i) Use its reasonable efforts to secure register and maintain the designation of all qualify the Registrable Securities covered by the Registration Statement on Statements under such other securities or "blue sky" laws of such jurisdictions in the Principal Trading Market and United States as the quotation Investors who hold a majority in interest of the Registrable Securities on the Principal Trading Market;
being offered reasonably request, (jii) Provide a transfer agent prepare and file in those jurisdictions such amendments ("Transfer Agent"including post-effective amendments) and registrar, which supplements to such registrations and qualifications as may be a single entitynecessary to maintain the effectiveness thereof during the Registration Period, for (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be sale in such denominations or amounts as the case may bejurisdictions; PROVIDED, as the Investor may reasonably requestHOWEVER, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, that the Company shall delivernot be required in connection therewith or as a condition thereto to (a) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), and shall (b) subject itself to general taxation in any such jurisdiction, (c) file a general consent to service of process in any such jurisdiction, (d) provide any undertakings that cause legal counsel selected by the Company undue expense or burden, or (e) make any change in its charter or bylaws, which in each case the Board of Directors of the Company determines to deliver, be contrary to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor best interests of the Registrable Securities pursuant to the Registration StatementCompany and its stockholders.
Appears in 1 contract
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(a) Prepare promptly, Promptly (i) prepare and file with the SEC by Commission such amendments (including post-effective amendments) to the Required Filing Date, a Registration Statement with respect and supplements to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts Prospectus as may be necessary to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement continuously effective at and in compliance with the provisions of the Securities Act applicable thereto so as to permit the Prospectus forming part thereof to be current and useable by Investors for resales of the Registrable Securities for a period of two years from the date on which the Registration Statement is first declared effective by the Commission (the "Effective Time") or such shorter period that will terminate when all timesthe Registrable Securities covered by the Registration Statement have been sold pursuant thereto in accordance with the plan of distribution provided in the Prospectus, other than during Permitted Suspension Periods, during transferred pursuant to Rule 144 under the period Securities Act or otherwise transferred in a manner that results in the delivery of new securities not subject to transfer restrictions under the Securities Act (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or and (ii) take all lawful action such that each of (A) the date Registration Statement and any amendment thereto does not, when it becomes effective, 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 Investor no longer own any statements therein, not misleading and (B) the Prospectus forming part of the Registrable SecuritiesRegistration Statement, which and any amendment or supplement thereto, does not at any time during the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any Period 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, in light of the circumstances in under which they were made, not misleading. Notwithstanding the foregoing provisions of this Section 3(a), the Company may, during the Registration Period, suspend the use of the Prospectus for a period not to exceed 90 days (whether or not consecutive) in any 12-month period if the Board of Directors of the Company determines in good faith that because of pending mergers or other business combination transactions, the planned acquisition or divestiture of assets, pending material corporate developments and similar events, it is in the best interests of the Company to suspend such use, and prior to or contemporaneously with suspending such use, the Company provide each Investor with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. At the end of any such suspension period, the Company shall provide each Investor with written notice of the termination of such suspension;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during During the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Investors as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 forming part 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereonare no longer Registrable Securities;
(ei) Furnish Prior to the filing with the Commission of any Registration Statement (including any amendments thereto) and the distribution or delivery of any Prospectus (including any supplements thereto), provide draft copies thereof to each Investor and reflect in such documents all such comments as the Investors (and their counsel) reasonably may propose with regard to Investor's Counsel Holder ownership and the Plan of Distribution included therein and (iii) furnish to the Investors and their legal counsel identified to the Company, (A) promptly after the same is prepared and publicly distributed, filed with the SECCommission, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectusProspectus, and each amendment or supplement thereto, and (iiB) such number of copies of a prospectus, the Prospectus and all amendments and supplements thereto and such other documents, as the each Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Investor;
(fd) As promptly as practicable after becoming aware thereofof such event, notify the each Investor of the happening occurrence of any event of which the Company has knowledgeevent, as a result of which the prospectus Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts and promptly to prepare a supplement or an amendment to the Registration Statement or other appropriate filing with and supplement to the SEC Prospectus to correct such untrue statement or omission, and deliver a number of copies of such supplement or and amendment to the each Investor as the Investor may reasonably request;
(ge) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination As promptly as practicable after becoming aware of information regarding the Companysuch event, and in furtherance notify each Investor of the foregoingissuance by the Commission of any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time and take all lawful action to effect the withdrawal, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Companyrescission or removal of such stop order or other suspension;
(if) Use its reasonable efforts to secure and maintain the designation of Cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Market principal national securities exchange, and the included in an inter-dealer quotation system of a registered national securities association, on or in which securities of the Registrable same class or series issued by the Company are then listed or included. The Company shall also file a sufficient number of copies of the prospectus and any post-effective amendment or supplement thereto with the New York Stock Exchange (or if the Common Stock is no longer listed thereon, with such other securities exchange or market on which the Common Stock is then listed) so as to enable the Holders to the benefits of the prospectus delivery provisions of Rule 153 under the Securities on the Principal Trading MarketAct;
(jg) Provide Maintain a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(kh) Cooperate with Direct its transfer agent, American Stock Transfer & Trust Company ("AST"), to record in uncertificated form in the Investor to facilitate master securityholder file that AST maintains for the timely preparation and delivery of certificates for Company as transfer agent, the Registrable Securities credited to each Investor. Such ownership data is not to be offered pursuant recorded in or in respect of a nominee account (except as may be necessary for brief intervals incident to share transfer processing), but instead are to be registered in the master securityholder file in the same manner in which certificated shares are registered. The uncertificated ownership position of each Investor shall be a restricted file and the terms of such restrictions shall be in accordance with the terms and conditions set forth in Section 5 of this Agreement.
(i) Take all such other lawful actions reasonably necessary to expedite and facilitate the disposition by each Investor of its Registrable Securities in accordance with the intended methods therefor provided in the Prospectus which are customary under the circumstances;
(j) If required, make generally available to its security holders as soon as practicable, but in any event not later than 18 months after (i) the effective date (as defined in Rule 158(c) under the Securities Act) of the Registration Statement, and (ii) the effective date of each post-effective amendment to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts Statement, as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, an earnings statement of the Company shall deliver, and shall cause legal counsel selected by its subsidiaries complying with Section 11(a) of the Company to deliver, to Securities Act and the Transfer Agent for rules and regulations of the Registrable Securities Commission thereunder (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by at the Investor option of the Registrable Securities pursuant to the Registration Statement.Company, Rule 158);
Appears in 1 contract
Samples: Registration Rights Agreement (Curtiss Wright Corp)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptly, and file with the SEC by thirty (30) days after the Required Filing Closing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) ), above, and thereafter use its reasonable best efforts to cause such each Registration Statement relating to Registrable Securities to become effective by within ninety (90) days of the Required Effective Date Closing Date, and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, during times until the period earliest (the "Registration Period") continuing until the earlier of (i) the date that is two years after the Closing Date (ii) the date when the Investor Investors may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (iiiii) the date the Investor Investors no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit The Company shall permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed Initial Investors and reasonably satisfactory to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") the Company to review the Registration Statement and all amendments and supplements thereto at a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless objects in written notice to the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than given within three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative counsel's receipt of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; amendment or supplement thereto;
(iid) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements Furnish to the Registration Statement or Prospectus or for additional information; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement covering any or all of the each Investor whose Registrable Securities or the initiation of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company makes any statement made are included 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 and its legal counsel identified to the Registration StatementCompany, 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(fe) As promptly as practicable after becoming aware thereofof such event, notify the each Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, therein in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;
(gf) [intentionally omitted ]
As promptly as practicable after becoming aware of such event, notify each Investor who holds Registrable Securities being sold (hor, in the event of an underwritten offering, the managing underwriters) Comply with Regulation FD of the issuance by the SEC of a notice of effectiveness or any similar rule stop order or regulation regarding the dissemination of information regarding the Company, and in furtherance other suspension of the foregoing, and not in limitation thereof, not disclose to effectiveness of the Investor any non-public material information regarding Registration Statement at the Companyearliest possible time;
(ig) Use its reasonable efforts to secure and maintain the designation of all cause the Registrable Securities covered by the Registration Statement to be listed for trading on the Principal Trading Market and American Stock Exchange (or on any other national securities exchange on which the quotation of the Registrable Securities on the Principal Trading Market;Company's Common Stock is then listed).
(jh) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(ki) Cooperate with the Investor Investors who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor Investors may reasonably request, and, within five three (53) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such Registration Statement) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(lj) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement.
Appears in 1 contract
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare Not later than November 1, 2204, take all necessary action at its expense to hold a special Shareholders Meeting to secure an increase in its authorized shares of Common Stock to not less than 100,000,000 shares of Common Stock .
(b) Retain Sichenzia Ross Friedman Ference LLP to prepare promptly, and file with the SEC by the Required Filing Date, xxx Xxxxxxxx Xxxxxx Xate a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, times during the period (the "Registration Period") continuing until the earlier of (i) the date when the Investor Investors may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (ii) the date the Investor Investors no longer own any of the Registrable SecuritiesSecurities,(provided however, the the Company will not be required to include the Warrant Shares in any Registration Statement for in excess of one year from the issuance date of the Warrants) which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(bc) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(cd) Permit a single firm of counsel designated by the Investor Initial Investors (which, until further notice, shall be deemed to be Xxxxxxx Krieger & Xxxxxx Prager LLP, Attn: Xxxxxx XxxxxxxSamuel Krieger, Esq., which firm has requested to receive requestxx xx xeceive such notificationnotificatxxx; eachxxxx, an xx "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(de) Notify the Investor Finder and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the InvestorInvestors); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d3(e) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor Investors shall have the opportunity to comment thereon;
(ef) Furnish to the each Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(fg) As promptly as practicable after becoming aware thereof, notify the each Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;
(gh) [intentionally omitted ]As promptly as practicable after becoming aware thereof, notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of a Notice of Effectiveness or any notice of effectiveness or any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time;
(hi) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(ij) Use its reasonable efforts Notwithstanding the foregoing, if at any time or from time to secure and maintain time after the designation date of all effectiveness of the Registrable Securities covered by Registration Statement, the Company notifies the Investors in writing that the effectiveness of the Registration Statement on is suspended for any reason, whether due to a Potential Material Event or otherwise, the Principal Trading Market and Investors shall not offer or sell any Registrable Securities, or engage in any other transaction involving or relating to the quotation Registrable Securities, from the time of the Registrable Securities on giving of such notice until such Investor receives written notice from the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for Company that such the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery effectiveness of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable has been restored, whether because the Potential Material Event has been disclosed to the public or it no longer constitutes a Potential Material Event or otherwise; provided, however, that the Company may not so suspend the right to such certificates for the holders of Registrable Securities during the periods the Registration Statement is required to be in effect other than during a Permitted Suspension Period (and the applicable provisions of Section 2(b) shall apply with respect to any such denominations suspension other than during a Permitted Suspension Period) . The term "Permitted Suspension Period" means up to two such suspension periods during any consecutive 12-month period, each of which suspension period shall not either (i) be for more than ten (10) days or amounts as the case may be, as the Investor may reasonably request, and, within five (5ii) begin less than ten (10) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor last day of the Registrable Securities pursuant to the Registration Statement.preceding suspension (whether or not such last day was during or after a Permitted Suspension Period);
Appears in 1 contract
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:.
(a) Prepare promptly, and file with the SEC by within thirty (30) days of the Required Filing Closing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) ), above, and thereafter use its reasonable best efforts to cause such each Registration Statement relating to Registrable Securities to become effective by on the Required Effective earlier of (i) five business days after notice from the Securities and Exchange Commission that the Registration Statement may be declared effective, or (b) ninety (90) days after the Closing Date (the "Initial Date"), and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, during times until the period earliest (the "Registration Period") continuing until the earlier of (i) the date that is two years after the Closing Date (ii) the date when the Investor Investors may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (iiiii) the date the Investor Investors no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit The Company shall permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") Initial Investors to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;.
(d) Notify the Furnish to each Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement covering any or all of the whose Registrable Securities or the initiation of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company makes any statement made are included 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 and its legal counsel identified to the Registration StatementCompany, 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Investor;
(e) Use reasonable efforts to (i) register and qualify the InvestorRegistrable Securities covered by the Registration Statement under such other securities or blue sky laws of such jurisdictions as the Investors who hold a majority in interest of the Registrable Securities being offered reasonably request and in which significant volumes of shares of Common Stock are traded, (ii) prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (B) subject itself to general taxation in any such jurisdiction, (C) file a general consent to service of process in any such jurisdiction, (D) provide any undertakings that cause more than nominal expense or burden to the Company or (E) make any change in its articles of incorporation or by-laws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders;
(f) As promptly as practicable after becoming aware thereofof such event, notify the each Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;
(g) [intentionally omitted ]As promptly as practicable after becoming aware of such event, notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of a Notice of Effectiveness or any notice of effectiveness or any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time;
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the CompanyUse its commercially reasonable efforts, and in furtherance of the foregoingif eligible, and not in limitation thereof, not disclose either to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation of cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Market a national securities exchange and the quotation on each additional national securities exchange on which securities of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations same class or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected series issued by the Company to deliverare then listed, to if any, if the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion listing of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement.Securities
Appears in 1 contract
Samples: Registration Rights Agreement (Casdim International Systems Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(a) Prepare promptly, Promptly (i) prepare and file with the SEC by Commission such amendments (including post-effective amendments) to the Required Filing Date, a Registration Statement with respect and supplements to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts Prospectus as may be necessary to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement continuously effective at and in compliance with the provisions of the Securities Act applicable thereto so as to permit the Prospectus forming part thereof to be current and useable by Investors for resales of the Registrable Securities for a period of two years from the date on which the Registration Statement is first declared effective by the Commission (the "Effective Time") or such shorter period that will terminate when all timesthe Registrable Securities covered by the Registration Statement have been sold pursuant thereto in accordance with the plan of distribution provided in the Prospectus, other than during Permitted Suspension Periods, during transferred pursuant to Rule 144 under the period Securities Act or otherwise transferred in a manner that results in the delivery of new securities not subject to transfer restrictions under the Securities Act (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or and (ii) take all lawful action such that each of (A) the date Registration Statement and any amendment thereto does not, when it becomes effective, 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 Investor no longer own any statements therein, not misleading and (B) the Prospectus forming part of the Registrable SecuritiesRegistration Statement, which and any amendment or supplement thereto, does not at any time during the Registration Statement Period 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 and (including B) the Prospectus forming part of the Registration Statement, and any amendments amendment or supplements thereto and prospectuses contained therein) shall supplement thereto, does not contain at any time during the Registration Period 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, in light of the circumstances in under which they were made, not misleading. Notwithstanding the foregoing provisions of this Section 3(a), the Company may, during the Registration Period, suspend the use of the Prospectus for a period not to exceed 60 days (whether or not consecutive) in any 12-month period if the Board of Directors of the Company determines in good faith that because of valid business reasons, including pending mergers or other business combination transactions, the planned acquisition or divestiture of assets, pending material corporate developments and similar events, it is in the best interests of the Company to suspend such use, and prior to or contemporaneously with suspending such use the Company provides the Investors with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. At the end of any such suspension period, the Company shall provide the Investors with written notice of the termination of such suspension;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during During the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Investors as set forth in the Prospectus forming part of the Registration Statement;
(ci) Permit Prior to the filing with the Commission of any Registration Statement (including any amendments thereto) and the distribution or delivery of any Prospectus (including any supplements thereto), provide (A) draft copies thereof to the Investors and reflect in such documents all such comments as the Investors (and their counsel) reasonably may propose and (B) to the Investors a single firm copy of counsel designated by the Investor (which, until further notice, shall be deemed accountant's consent letter to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested included in the filing and (ii) furnish to receive such notification; each, an "Investor's Counsel") to review each Investor whose Registrable Securities are included in the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such its legal counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment identified to the Registration Statement is proposed to be filed; Company, (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (iA) promptly after the same is prepared and publicly distributed, filed with the SECCommission, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectusProspectus, and each amendment or supplement thereto, and (iiB) such number of copies of a prospectus, the Prospectus and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(fi) Register or qualify the Registrable Securities covered by the Registration Statement under such securities or "blue sky" laws of such jurisdictions as the Investors who hold a majority-in-interest of the Registrable Securities being offered reasonably request, (ii) prepare and file in such jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take all such other lawful actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all such other lawful actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (B) subject itself to general taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(e) As promptly as practicable after becoming aware thereofof such event, notify the each Investor of the happening occurrence of any event of which the Company has knowledgeevent, as a result of which the prospectus Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts and promptly to prepare a supplement or an amendment to the Registration Statement or other appropriate filing with and supplement to the SEC Prospectus to correct such untrue statement or omission, and deliver a number of copies of such supplement or and amendment to the each Investor as the such Investor may reasonably request;
(gf) [intentionally omitted ]
As promptly as practicable after becoming aware of such event, notify each Investor who holds Registrable Securities being sold (hor, in the event of an underwritten offering, the managing underwriters) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoingissuance by the Commission of any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time and take all lawful action to effect the withdrawal, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Companyrecession or removal of such stop order or other suspension;
(ig) Use its reasonable efforts to secure and maintain the designation of Cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Market principal national securities exchange, and the included in an inter-dealer quotation system of a registered national securities association, on or in which securities of the Registrable Securities on same class or series issued by the Principal Trading MarketCompany are then listed or included;
(jh) Provide Maintain a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(ki) Cooperate with the Investor Investors who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement registration statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investors reasonably may request and registered in such names as the Investor may reasonably request, ; and, within five (5) three business days after a Registration Statement registration statement which includes Registrable Securities is ordered declared effective by the SECCommission, the Company shall deliver, deliver and shall cause legal counsel selected by the Company to deliver, deliver to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such registration statement) an appropriate instruction and and, to the extent necessary, an opinion of such counsel;
(j) Take all such other lawful actions reasonably necessary to expedite and facilitate the disposition by the Investors of their Registrable Securities in accordance with the intended methods therefor provided in the Prospectus which are customary under the circumstances;
(k) Make generally available to its security holders as soon as practicable, but in any event not later than three (3) months after (i) the effective date (as defined in Rule 158(c) under the Securities Act) of the Registration Statement, and (ii) the effective date of each post-effective amendment to the Registration Statement, as the case may be, an earnings statement of the Company and its subsidiaries complying with Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(1) In the event of an underwritten offering, promptly include or incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the managers reasonably agree should be included therein and to which the Company does not reasonably object and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after it is notified of the matters to be included or incorporated in such Prospectus supplement or post-effective amendment;
(i) Make reasonably available for inspection by Investors, any underwriter participating in any disposition pursuant to the Registration Statement, and any attorney, accountant or other agent retained by such Investors or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and (ii) cause the Company's officers, directors and employees to supply all information reasonably requested by such Investors or any such underwriter, attorney, accountant or agent in connection with the Registration Statement, in each case, as is customary for similar due diligence examinations; provided, however, that all records, information and documents that are designated in writing by the Company, in good faith, as confidential, proprietary or containing any material nonpublic information shall be kept confidential by such Investors and any such underwriter, attorney, accountant or agent (pursuant to an appropriate confidentiality agreement in the case of any such holder or agent), unless such disclosure is made pursuant to judicial process in a court proceeding (after first giving the Company an opportunity promptly to seek a protective order or otherwise limit the scope of the information sought to be disclosed) or is required by law, or such records, information or documents become available to the public generally or through a third party not in violation of an accompanying obligation of confidentiality; and provided, further, that, if the foregoing inspection and information gathering would otherwise disrupt the Company's conduct of its business, such inspection and information gathering shall, to the maximum extent possible, be coordinated on behalf of the Investors and the other parties entitled thereto by one firm of counsel designed by and on behalf of the majority in interest of Investors and other parties;
(n) In connection with any underwritten offering, make such representations and warranties to the Investors participating in such underwritten offering and to the managers, in form, substance and scope as are customarily made by the Company to underwriters in secondary underwritten offerings;
(o) In connection with any underwritten offering, obtain opinions of counsel to the Company (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managers) addressed to the underwriters, covering such matters as are customarily covered in opinions requested in secondary underwritten offerings (it being agreed that the matters to be covered by such opinions shall include, without limitation, directions to as of the Transfer Agent to issue certificates date of Registrable Securities (the opinion and as of the Effective Time of the Registration Statement or most recent post-effective amendment thereto, as the case may be, the absence from the Registration Statement and the Prospectus, including certificates for Registrable Securities any documents incorporated by reference therein, of an untrue statement of a material fact or the omission of a material fact required to be issued after stated therein or necessary to make the Effective Date and replacement certificates for Registrable Securities previously issuedstatements therein (in the case of the Prospectus, in light of the circumstances under which they were made) without legends or other restrictionsnot misleading, subject to compliance customary limitations);
(p) In connection with applicable lawany underwritten offering, obtain "cold comfort" letters and updates thereof from the independent public accountants of the Company (and, if necessary, from the independent public accountants of any subsidiary of the Company or of any business acquired by the Company, in each case for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each underwriter participating in such underwritten offering (if such underwriter has provided such letter, representations or documentation, if any, required for such cold comfort letter to be so addressed), in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with secondary underwritten offerings;
(q) In connection with any underwritten offering, deliver such documents and certificates as may be reasonably required by the managers, if any; and
(r) In the event that any broker-dealer registered under the Exchange Act shall be an "Affiliate" (as defined in Rule 2729(b)(1) of the rules and regulations of the National Association of Securities Dealers, Inc. (the "NASD Rules") (or any successor provision thereto)) of the Company or has a "conflict of interest" (as defined in Rule 2720(b)(7) of the NASD Rules (or any successor provision thereto)) and such broker-dealer shall underwrite, participate as a member of an underwriting syndicate or selling group or assist in the distribution of any Registrable Securities covered by the Registration Statement, whether as a holder of such Registrable Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company shall assist such broker-dealer in complying with the requirements of the NASD Rules, including, without limitation, prospectus delivery requirements; and
by (lA) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor engaging a "qualified independent underwriter" (as defined in Rule 2720(b)(15) of the NASD Rules (or any successor provision thereto)) to participate in the preparation of the Registration Statement relating to such Registrable Securities pursuant Securities, to exercise usual standards of due diligence in respect thereof and to recommend the public offering price of such Registrable Securities, (B) indemnifying such qualified independent underwriter to the Registration Statementextent of the indemnification of underwriters provided in Section 5 hereof, and (C) providing such information to such broker-dealer as may be required in order for such broker-dealer to comply with the requirements of the NASD Rules.
Appears in 1 contract
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptly, and file with the SEC by the Required Filing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter and, thereafter, use its reasonable best all diligent efforts to cause such the Registration Statement relating to the Registrable Securities to become effective by the Required earlier of (i) five (5) business days after notice from the SEC that the Registration Statement may be declared effective, or (ii) the Effective Date Date, and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing times until the earlier earliest of (iA) the date that is one year after the completion of the last Closing Date under the Equity Credit Agreement, (B) the date when the Investor Subscriber may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits limitations, or (iiC) the date the Investor Subscriber no longer own owns any of the Registrable SecuritiesSecurities (collectively, the "Registration Period"), which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in under which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, and comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all the expiration of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration StatementPeriod;
(c) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") Subscriber to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines it being understood that such document is required by law review and objections shall relate exclusively to be so filedmatters in the Registration Statement or omitted therefrom affecting any or all of the Equity Credit Agreement, Subscriber and the Registrable Securities or compliance with the terms of this Agreement or the other Transaction Documents;
(d) Notify Subscriber and Subscriber's legal counsel identified to the Investor and the InvestorCompany ("Subscriber's Counsel and any managing underwriters immediately Counsel") (and, in the case of (i)(A) below, not less than three five (35) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(Ai): (A) when a Prospectus prospectus or any Prospectus prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; and (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus the prospectus or for additional information; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company makes any statement made in the Registration Statement or Prospectus the 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 the prospectus or other documents so that, in the case of the Registration Statement or the Prospectusprospectus, 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. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor Subscriber and to InvestorSubscriber's Counsel Counsel, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and the prospectus, and each amendment or supplement thereto, all correspondence to, with, or from the SEC and (ii) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto and such other documents, as the Investor Subscriber may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the InvestorSubscriber;
(f) Use all diligent efforts to (i) register and/or qualify the Registrable Securities covered by the Registration Statement under such other securities or blue sky laws of such jurisdictions as the Subscriber may reasonably request and in which significant volumes of shares of Common Stock are traded, (ii) prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualification in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(f), (B) subject itself to general taxation in any such jurisdiction, (C) file a general consent to service of process in any such jurisdiction, (D) provide any undertakings that cause more than nominal expense or burden to the Company or (E) make any change in its charter or by-laws or any then existing contracts;
(g) As promptly as practicable after becoming aware thereofof such event, notify the Investor Subscriber of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, subject to Section 4(cmisleading ("Registration Default"), and use its best all diligent efforts to promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and any other necessary steps to cure the Registration Default, and deliver a number of copies of such supplement or amendment to the Investor Subscriber as the Investor Subscriber may reasonably request;
. Failure to file such supplement or amendment to the Registration Statement with the SEC within twenty (g20) [intentionally omitted ]business days shall result in the Company incurring liquidated damages of 1% of the cost of all Registrable Securities then held by the Subscriber for each twenty (20) business day period or portion thereof, beginning on the twenty-first (21st) business day after the Registration Default and terminating on the date such supplement or amendment to the Registration Statement is filed with the SEC.
(h) Comply with Regulation FD As promptly as practicable after becoming aware of such event, notify the Subscriber (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of any notice of effectiveness or any similar rule stop order or regulation regarding the dissemination of information regarding the Company, and in furtherance other suspension of the foregoing, and not in limitation thereof, not disclose to effectiveness of the Investor any non-public material information regarding the CompanyRegistration Statement;
(i) Notwithstanding the foregoing, if at any time or from time to time after the date of effectiveness of the Registration Statement, the Company notifies Subscriber in writing of the existence of a Potential Material Event ("Blackout Notice"), Subscriber shall not offer or sell any Registrable Securities, or engage in any other transaction involving or relating to the Registrable Securities, from the time of the giving of notice with respect to a Potential Material Event until Subscriber receives written notice from the Company that such Potential Material Event either has been disclosed to the public or no longer constitutes a Potential Material Event; provided, however, that the Company may not so suspend the right to such holders of Registrable Securities for more than two ten (10) day periods in the aggregate during any 12-month period ("Blackout Period") with at least a ten (10) Business Day interval between such periods, during the periods the Registration Statement is required to be in effect;
(j) Use its commercially reasonable efforts efforts, if eligible, either to (i) cause all the Registrable Securities covered by the Registration Statement to be listed on a national securities exchange and on each additional national securities exchange on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (ii) secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on as a National Association of Securities Dealers Automated Quotations System ("Nasdaq") "Small Capitalization" within the Principal Trading Market meaning of Rule 11Aa2-1 of the SEC under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the quotation of the Registrable Securities on the Principal Trading Nasdaq Small Cap Market;
; or if, despite the Company's commercially reasonable efforts to satisfy the preceding clause (ji) Provide a transfer agent or ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SECii), the Company is unsuccessful in doing so, to secure NASD authorization and quotation for such Registrable Securities on the over-the-counter bulletin board and, without limiting the generality of the foregoing, to arrange for at least two market makers to register with the National Association of Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securities; provided, however, that the Subscriber acknowledges that the Company does not currently meet the requirements for listing on a national securities exchange or the Nasdaq Small Cap Market pursuant to (i) or (ii) and that nothing in this section shall deliver, and shall cause legal counsel selected by be construed to require the Company to deliver, to pursue such qualification until such time as the Transfer Agent Company satisfies such requirements for the Registrable Securities a period of not less than forty-five (with copies to the Investor45) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement.days;
Appears in 1 contract
Samples: Registration Rights Agreement (Global Matrechs, Inc.)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptly, and file with the SEC by the Required Filing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) 2 above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, times during the period (the "Registration Period") continuing until the earlier earliest of (i) the date that is two (2) years after the last day of the calendar month following the month in which the Effective Date occurs, (ii) the date when the Investor Investors may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (iiiii) the date the Investor Investors no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") Investors to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the each Investor, such Investor's Counsel legal counsel identified to the Company and which has requested by written notice to the Company that it receive such notification (which, until further notice, shall be deemed to be ____________________, Attn: ____________________, which firm has requested to receive such notification; each, an "Investor's Counsel"), and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three two (32) business days prior to such filing) and (if requested by any such personPerson) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the InvestorInvestors); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel Investors with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor Investors shall have the opportunity to comment thereon;
(e) Furnish to the each Investor and to such Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(f) As promptly as practicable after becoming aware thereof, notify the each Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;
(g) [intentionally omitted ]As promptly as practicable after becoming aware thereof, notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of a Notice of Effectiveness or any notice of effectiveness or any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time;
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of Notwithstanding the foregoing, and if at any time or from time to time after the date of effectiveness of the Registration Statement, the Company notifies the Investors in writing of the existence of a Potential Material Event, the Investors shall not offer or sell any Registrable Securities, or engage in limitation thereof, not disclose any other transaction involving or relating to the Registrable Securities, from the time of the giving of notice with respect to a Potential Material Event until such Investor receives written notice from the Company that such Potential Material Event either has been disclosed to the public or no longer constitutes a Potential Material Event; PROVIDED, HOWEVER, that the Company may not so suspend the right to such holders of Registrable Securities during the periods the Registration Statement is required to be in effect other than during a Permitted Suspension Period. The term "Permitted Suspension Period" means up to two suspension periods during any nonconsecutive 12-public material information regarding the Company;
month period, each of which suspension period shall not either (i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
be for more than thirty (j30) Provide a transfer agent days or ("Transfer Agent"ii) and registrar, which may be a single entity, for the Registrable Securities not later begin less than the initial Effective Date;
ten (k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (510) business days after the last day of the preceding suspension (whether or not such last day was during or after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, Permitted Suspension Period); provided further that the Company shall delivershall, and shall cause legal counsel selected by the Company if lawful to deliverdo so, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by provide the Investor with at least two (2) business days' notice of the Registrable Securities pursuant to existence (but not the Registration Statement.substance of) a Potential Material Event;
Appears in 1 contract
Samples: Securities Purchase Agreement (Advanced Viral Research Corp)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of have the followingfollowing obligations:
(a) Prepare a. The Company shall prepare promptly, and file with the SEC by Commission as soon as practicable after the Required date of the closing under the Purchase Agreement (the “Closing Date”) (but no later than the Filing DateDeadline), a Registration Statement Statements with respect to not less than the number of Registrable Securities provided in Section 2(a) above), and thereafter use its reasonable best efforts to cause each such Registration Statement relating to Registrable Securities to become effective by as soon as possible after such filing, but in any event shall cause each such Registration Statement relating to Registrable Securities to become effective no later than the Required Effective Date Effectiveness Deadline, and shall keep the Registration Statement current and effective pursuant to Rule 415 at all times, other than during Permitted Suspension Periods, times during the period (the "Registration Effectiveness Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (ii) the date the Investor no longer own any of the Registrable Securities, which . The Registration Statement (including any amendments or supplements thereto and prospectuses Prospectuses contained therein) shall not not, at the time of filing thereof, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in light of the circumstances in which they were made, therein not misleading;.
b. The Company shall (bi) Prepare prepare and file with the SEC Commission such amendments (including post-effective amendments) and supplements to the each Registration Statement Statements and the prospectus Prospectus used in connection with the Registration Statement Statements as may be necessary to keep the Registration Statement Statements current and effective at all times during the Registration Period (except during Permitted Suspension Periods)Effectiveness Period, and, during the Registration Periodsuch period, comply with the provisions of the Securities 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement Statements until the earlier of such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
Statements and the end of the Effectiveness Period, (cii) Permit a single firm of counsel designated by cause the Investor (which, until further notice, shall be deemed related Prospectus to be Xxxxxxx & Xxxxxx LLPamended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), Attn: Xxxxxx Xxxxxxxand, Esq.as so supplemented or amended, which firm has requested to receive such notification; eachbe filed pursuant to Rule 424, an "Investor's Counsel"(iii) respond as promptly as reasonably possible to review any comments received from the Commission with respect to a Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment thereto and provide as promptly as reasonably possible to the Registration Statement is proposed Buyer true and complete copies of all correspondence from and to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of Commission relating to a Registration Statement (copies orprovided that, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company may excise any information contained therein which would constitute material non-public information as to a Buyer which has not executed a confidentiality agreement with respect thereto with the InvestorCompany); , and (Div) comply in all material respects with the applicable provisions of the 1933 Act and the 1934 Act with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies disposition of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Investor;
(f) As promptly as practicable after becoming aware thereof, notify the Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by during the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, applicable period in accordance (subject to the Transfer Agent for terms of this Agreement) with the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion intended methods of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Buyer thereof set forth in such Registration StatementStatement as so amended or in such Prospectus as so supplemented.
Appears in 1 contract
Samples: Registration Rights Agreement (Allora Minerals, Inc.)
Obligations of the Company. In connection with the registration of the Registrable SecuritiesSecurities pursuant to Sections 2 and 3 hereof, as applicable, the Company shall do each of the followingshall:
(a) Prepare prepare promptly, and file with the SEC by the Required Filing DateSEC, a Registration Statement with respect to not less than the number of Registrable Securities as provided in Section 2(a) above), and thereafter use its reasonable best efforts to cause such each Registration Statement relating to Registrable Securities to become effective by the Required Effective Date as soon as possible after such filing, and keep the each Registration Statement effective pursuant to Rule 415 at all times, other than during Permitted Suspension Periods, times during the the period from the Closing Date to the earliest of (i) the date which is two years after the date on which the last Adjustment Shares may be issued pursuant to the Purchase Agreement, (ii) the date on which each Investor may sell all of its Registrable Securities (including Adjustment Shares which may be issued pursuant to the Purchase Agreement) without registration under the Securities Act pursuant to Rule 144, without restriction on the manner of sale or the volume of securities which may be sold in any period and without the requirement for the giving of any notice to, or the making of any filing with, the SEC and (iii) the date on which the Investors no longer beneficially own any Registrable Securities (the "Registration Period") continuing until ); submit to the earlier SEC, within five business days after the Company learns that no review of (i) a Registration Statement will be made by the staff of the SEC or that the staff of the SEC has no further comments on the Registration Statement, as the case may be, a request for acceleration of effectiveness of such Registration Statement to a time and date not later than five business days after the submission of such request; notify the Investors of the effectiveness of such Registration Statement on the date when that the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (ii) Company is advised by the date SEC that the Investor no longer own any of Registration Statement has been declared effective; and the Registrable SecuritiesCompany represents and warrants to, which and covenants and agrees with, the Investors that the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein), at the time it is first filed with the SEC, at the time it is ordered effective by the SEC and at all times during which it is required to be effective hereunder (and each such amendment and supplement at the time it is filed with the SEC and at all times during which it is available for use in connection with the offer and sale of the Registrable Securities) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the such Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the furnish to each Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review whose Registrable Securities are included in the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SECits legal counsel, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, SEC or received by the Company, one (1) copy of the Registration StatementStatement and any amendment thereto, each preliminary prospectus and prospectus, prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC and each item of written correspondence from the SEC or the staff of the SEC relating to such Registration Statement (other than any portion of any thereof that contains information for which the Company 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 the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Investor;
(d) use reasonable efforts to (i) register and qualify the InvestorRegistrable Securities covered by the Registration Statement under such securities or blue sky laws of such jurisdictions as the Investors who hold a majority in interest of the Registrable Securities being offered reasonably request, (ii) prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto (I) to qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(d), (II) to subject itself to general taxation in any such jurisdiction, (III) to file a general consent to service of process in any such jurisdiction, (IV) to provide any undertakings that cause more than nominal expense or burden to the Company or (V) to make any change in its articles of incorporation or by-laws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its shareholders;
(e) in the event that the Registrable Securities are being offered in an underwritten offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, including, without limitation, customary indemnification and contribution obligations, with the underwriters of such offering;
(f) As as promptly as practicable after becoming aware thereofof such event or circumstance, notify the each Investor of the happening of any event or circumstance of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, file such supplement or amendment with the SEC at such time as shall permit the Investors to sell Registrable Securities as promptly as practicable, and deliver a number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request. If such event is the conduct of negotiations with respect to a transaction, the disclosure of which the Company reasonably concludes would be detrimental to the Company (each, a "Negotiation Event"), the Company shall be entitled, upon giving notice of a Negotiation Event to each holder (the "Negotiation Notice") and upon the reasonable determination of the Company, after consulting with counsel, that failure to disclose the Negotiation Event would constitute an omission to state a material fact required to be stated in the Registration Statement, to require the Investors to suspend sales of the Common Stock pursuant to the Registration Statement for a period of up to fifteen (15) days after the giving of the Negotiation Notice; provided, however, that the Company shall not give more than one (1) Negotiation Notice in any twelve-month period;
(g) [intentionally omitted ]as promptly as practicable after becoming aware of such event, notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of any stop order or other suspension of effectiveness of the Registration Statement at the earliest possible time;
(h) Comply with Regulation FD or any similar rule or regulation regarding permit a single firm of counsel designated as selling shareholders' counsel by the dissemination of information regarding the Company, and Investors who hold a majority in furtherance interest of the foregoingRegistrable Securities being sold to review and comment on the Registration Statement and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not in limitation thereofprovided, not disclose that to the Investor any non-public material information regarding extent that the Companyfailure of such counsel to respond promptly hereunder results in a delay in the filing of the registration statement;
(i) Use make generally available to its reasonable security holders as soon as practical, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the Securities Act) covering a twelve-month period beginning not later than the first day of the Company's fiscal quarter next following the effective date of the Registration Statement;
(j) at the request of the Investors who hold a majority in interest of the Registrable Securities being sold, furnish on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (i) a letter, dated such date, from the Company's independent certified public accountants in form and substance as is customarily given by independent certified public accountants to underwriters in underwritten public offerings, addressed to the underwriters; and (ii) an opinion, dated such date, from counsel representing the Company for purposes of such Registration Statement, in form and substance as is customarily given in an underwritten public offering, addressed to the underwriters and the Investors;
(k) make available for inspection by any Investor, any underwriter participating in any disposition pursuant to the Registration Statement and a single firm of counsel and a single firm of accountants or other agents retained by any such Investor and one firm of attorneys retained by all such underwriters (collectively, the "Inspectors"), all pertinent financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records"), as shall be reasonably necessary to enable each Investor to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information that any Inspector reasonably may request for purposes of such due diligence; provided, however, that each Inspector shall hold in confidence and shall not make any disclosure (except to an Investor) of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement, (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court or government body of competent jurisdiction or (iii) the information in such Records has been made generally available to the public other than by disclosure in violation of this or any other agreement. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 4(k). Each Investor agrees that it shall, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at the Company's own expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidential. The Company shall hold in confidence and shall not make any disclosure of information concerning an Investor provided to the Company pursuant to Sections 5(a) and 5(e) hereof unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement, (iii) the release of such information is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction or (iv) such information has been made generally available to the public other than by disclosure in violation of this or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor, at such Investor's own expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information;
(l) use its best efforts to secure and maintain the designation of cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Market and the quotation Nasdaq or such other principal securities market on which securities of the Registrable Securities on same class or series issued by the Principal Trading MarketCompany are then listed or traded;
(jm) Provide provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(kn) Cooperate cooperate with the Investor Investors who hold Registrable Securities being offered and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates for the (not bearing any restrictive legends) representing Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor managing underwriter or underwriters, if any, or the Investors may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Investors may request, and, within five ;
(5o) business days after a during the Registration Statement which includes Registrable Securities is ordered effective by the SEC, Period the Company shall delivernot bid for or purchase any Common Stock or any right to purchase Common Stock or attempt to induce any person to purchase any such security or right if such bid, and shall cause legal counsel selected by purchase or attempt would in any way limit the Company right of the Investors to deliver, to the Transfer Agent for the sell Registrable Securities (with copies to by reason of the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to limitations in Regulation M under the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirementsExchange Act; and
(lp) Take take all other reasonable actions necessary to expedite and facilitate disposition by the Investor Investors of the Registrable Securities pursuant to the Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Tera Computer Co \Wa\)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(aA) Prepare promptly, Promptly (i) prepare and file with the SEC by Commission such amendments (including post-effective amendments) to the Required Filing Date, a Registration Statement with respect and supplements to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts Prospectus as may be necessary to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement continuously effective at all times, other than during Permitted Suspension Periods, during and in compliance with the provisions of the Securities Act applicable thereto so as to permit the Prospectus forming part thereof to be current and useable by Investors for resales of the Registrable Securities for a period of five (5) years from the date on which the Registration Statement is first declared effective by the Commission (the "“Effective Time”) or such shorter period that will terminate when all the Registrable Securities covered by the Registration Statement have been sold pursuant thereto in accordance with the plan of distribution provided in the Prospectus, transferred pursuant to Rule 144 under the Securities Act or otherwise transferred in a manner that results in the delivery of new securities not subject to transfer restrictions under the Securities Act (the “Registration Period"”) continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or and (ii) take all lawful action such that each of (A) the date Registration Statement and any amendment thereto does not, when it becomes effective, 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 Investor no longer own any statements therein, not misleading and (B) the Prospectus forming part of the Registrable SecuritiesRegistration Statement, which and any amendment or supplement thereto, does not at any time during the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any Period 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, in light of the circumstances in under which they were made, not misleading;
(bB) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during During the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Investors as set forth in the Prospectus forming part of the Registration Statement;
(ci) Permit Prior to the filing with the Commission of any Registration Statement (including any amendments thereto) and the distribution or delivery of any Prospectus (including any supplements thereto), provide (A) draft copies thereof to the Investors and reflect in such documents all such comments as the Investors (and their counsel) reasonably may propose and (B) to the Investors a single firm copy of counsel designated by the Investor (which, until further notice, shall be deemed accountant’s consent letter to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested included in the filing and (ii) furnish to receive such notification; each, an "Investor's Counsel") to review each Investor whose Registrable Securities are included in the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such its legal counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment identified to the Registration Statement is proposed to be filed; Company, (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (iA) promptly after the same is prepared and publicly distributed, filed with the SECCommission, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectusProspectus, and each amendment or supplement thereto, thereto and (iiB) such number of copies of a prospectus, the Prospectus and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(fi) Register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions as the Investors who hold a majority-in-interest of the Registrable Securities being offered reasonably request, (ii) prepare and file in such jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take all such other lawful actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period and (iv) take all such other lawful actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(D), (B) subject itself to general taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(E) As promptly as practicable after becoming aware thereofof such event, notify the each Investor of the happening occurrence of any event of which the Company has knowledgeevent, as a result of which the prospectus Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts and promptly to prepare a supplement or an amendment to the Registration Statement or other appropriate filing with and supplement to the SEC Prospectus to correct such untrue statement or omission, and deliver a number of copies of such supplement or and amendment to the each Investor as the such Investor may reasonably request;
(gF) [intentionally omitted ]
As promptly as practicable after becoming aware of such event, notify each Investor who holds Registrable Securities being sold (hor, in the event of an underwritten offering, the managing underwriters) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoingissuance by the Commission of any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time and take all lawful action to effect the withdrawal, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Companyrecession or removal of such stop order or other suspension;
(iG) Use its reasonable efforts to secure and maintain the designation of Cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Market principal national securities exchange, and the included in an inter-dealer quotation system of a registered national securities association, on or in which securities of the Registrable Securities on same class or series issued by the Principal Trading MarketCompany are then listed or included;
(jH) Provide Maintain a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(kI) Cooperate with the Investor Investors who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement registration statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investors reasonably may request and registered in such names as the Investor may reasonably request, ; and, within five three (53) business days after a Registration Statement registration statement which includes Registrable Securities is ordered declared effective by the SECCommission, the Company shall deliver, deliver and shall cause legal counsel selected by the Company to deliver, deliver to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such registration statement) an appropriate instruction and and, to the extent necessary, an opinion of such counsel;
(J) Take all such other lawful actions reasonably necessary to expedite and facilitate the disposition by the Investors of their Registrable Securities in accordance with the intended methods therefor provided in the Prospectus which are customary under the circumstances;
(K) Make generally available to its security holders as soon as practicable, but in any event not later than three (3) months after (i) the effective date (as defined in Rule 158(c) under the Securities Act) of the Registration Statement and (ii) the effective date of each post-effective amendment to the Registration Statement, as the case may be, an earnings statement of the Company and its subsidiaries complying with Section 11 (a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(L) In the event of an underwritten offering, promptly include or incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the managers reasonably agree should be included therein and to which the Company does not reasonably object and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after it is notified of the matters to be included or incorporated in such Prospectus supplement or post-effective amendment;
(i) Make reasonably available for inspection by Investors, any underwriter participating in any disposition pursuant to the Registration Statement, and any attorney, accountant or other agent retained by such Investors or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and (ii) cause the Company’s officers, directors and employees to supply all information reasonably requested by such Investors or any such underwriter, attorney, accountant or agent in connection with the Registration Statement, in each case, as is customary for similar due diligence examinations; provided, however, that all records, information and documents that are designated in writing by the Company, in good faith, as confidential, proprietary or containing any material nonpublic information shall be kept confidential by such Investors and any such underwriter, attorney, accountant or agent (pursuant to an appropriate confidentiality agreement in the case of any such holder or agent), unless such disclosure is made pursuant to judicial process in a court proceeding (after first giving the Company an opportunity promptly to seek a protective order or otherwise limit the scope of the information sought to be disclosed) or is required by law, or such records, information or documents become available to the public generally or through a third party not in violation of an accompanying obligation of confidentiality; and provided, further, that, if the foregoing inspection and information gathering would otherwise disrupt the Company’s conduct of its business, such inspection and information gathering shall, to the maximum extent possible, be coordinated on behalf of the Investors and the other parties entitled thereto by one firm of counsel designed by and on behalf of the majority in interest of Investors and other parties;
(N) In connection with any underwritten offering, make such representations and warranties to the Investors participating in such underwritten offering and to the managers, in form, substance and scope as are customarily made by the Company to underwriters in secondary underwritten offerings;
(O) In connection with any underwritten offering, obtain opinions of counsel to the Company (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managers) addressed to the underwriters, covering such matters as are customarily covered in opinions requested in secondary underwritten offerings (it being agreed that the matters to be covered by such opinions shall include, without limitation, directions to as of the Transfer Agent to issue certificates date of Registrable Securities (the opinion and as of the Effective Time of the Registration Statement or most recent post-effective amendment thereto, as the case may be, the absence from the Registration Statement and the Prospectus, including certificates for Registrable Securities any documents incorporated by reference therein, of an untrue statement of a material fact or the omission of a material fact required to be issued after stated therein or necessary to make the Effective Date and replacement certificates for Registrable Securities previously issuedstatements therein (in the case of the Prospectus, in light of the circumstances under which they were made) without legends or other restrictionsnot misleading, subject to compliance customary limitations);
(P) In connection with applicable lawany underwritten offering, obtain “cold comfort” letters and updates thereof from the independent public accountants of the Company (and, if necessary, from the independent public accountants of any subsidiary of the Company or of any business acquired by the Company, in each case for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each underwriter participating in such underwritten offering (if such underwriter has provided such letter, representations or documentation, if any, required for such cold comfort letter to be so addressed), in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with secondary underwritten offerings;
(Q) In connection with any underwritten offering, deliver such documents and certificates as may be reasonably required by the managers, if any, and
(R) In the event that any broker-dealer registered under the Exchange Act shall be an “Affiliate” (as defined in Rule 2729(b)(1) of the rules and regulations of the National Association of Securities Dealers, Inc. (the “NASD Rules”) (or any successor provision thereto)) of the Company or has a “conflict of interest” (as defined in Rule 2720(b)(7) of the NASD Rules (or any successor provision thereto)) and such broker-dealer shall underwrite, participate as a member of an underwriting syndicate or selling group or assist in the distribution of any Registrable Securities covered by the Registration Statement, whether as a holder of such Registrable Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company shall assist such broker-dealer in complying with the requirements of the NASD Rules, including, without limitation, prospectus delivery requirements; and
by (lA) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor engaging a “qualified independent underwriter” (as defined in Rule 2720(b)(15) of the NASD Rules (or any successor provision thereto)) to participate in the preparation of the Registration Statement relating to such Registrable Securities pursuant Securities, to exercise usual standards of due diligence in respect thereof and to recommend the public offering price of such Registrable Securities, (B) indemnifying such qualified independent underwriter to the Registration Statementextent of the indemnification of underwriters provided in Section 6 hereof and (C) providing such information to such broker-dealer as may be required in order for such broker-dealer to comply with the requirements of the NASD Rules.
Appears in 1 contract
Samples: Registration Rights Agreement (Diatect International Corp)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(a) Prepare promptly, Promptly (i) prepare and file with the SEC by Commission such amendments (including post-effective amendments) to the Required Filing Date, a Registration Statement with respect and supplements to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts Prospectus as may be necessary to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement continuously effective at all times, other than during Permitted Suspension Periods, during and in compliance with the provisions of the Securities Act applicable thereto so as to permit the Prospectus forming part thereof to be current and useable by Investors for resales of the Registrable Securities for a period of five years from the date on which the Registration Statement is first declared effective by the Commission (the "Registration PeriodEFFECTIVE TIME") continuing until or such shorter period that will terminate when all the earlier of (i) the date when the Investor may sell all Registrable Securities under covered by the Registration Statement have been sold pursuant thereto in accordance with the plan of distribution provided in the Prospectus, transferred pursuant to Rule 144 without volume under the Securities Act or other otherwise transferred in a manner that results in the delivery of new securities not subject to transfer restrictions or limits or under the Securities Act (the "REGISTRATION PERIOD") and (ii) take all lawful action such that each of (A) the date Registration Statement and any amendment thereto does not, when it becomes effective, 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 Investor no longer own any statements therein, not misleading and (B) the Prospectus forming part of the Registrable SecuritiesRegistration Statement, which and any amendment or supplement thereto, does not at any time during the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any Period 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, in light of the circumstances in under which they were made, not misleading;.
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during During the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Investors as set forth in the Prospectus forming part of the Registration Statement;
(ci) Permit Prior to the filing with the Commission of any Registration Statement (including any amendments thereto) and the distribution or delivery of any Prospectus (including any supplements thereto), provide (A) draft copies thereof to the Investors and reflect in such documents all such comments as the Investors (and their counsel) reasonably may propose and (B) to the Investors a single firm copy of counsel designated by the Investor (which, until further notice, shall be deemed accountant's consent letter to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested included in the filing and (ii) furnish to receive such notification; each, an "Investor's Counsel") to review each Investor whose Registrable Securities are included in the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such its legal counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment identified to the Registration Statement is proposed to be filed; Company, (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (iA) promptly after the same is prepared and publicly distributed, filed with the SECCommission, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectusProspectus, and each amendment or supplement thereto, and (iiB) such number of copies of a prospectus, the Prospectus and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(fi) Register or qualify the Registrable Securities covered by the Registration Statement under such securities or "blue sky" laws of such jurisdictions as the Investors who hold a majority-in-interest of the Registrable Securities being offered reasonably request, (ii) prepare and file in such jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take all such other lawful actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all such other lawful actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; PROVIDED, HOWEVER, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (B) subject itself to general taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(e) As promptly as practicable after becoming aware thereofof such event, notify the each Investor of the happening occurrence of any event of which the Company has knowledgeevent, as a result of which the prospectus Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts and promptly to prepare a supplement or an amendment to the Registration Statement or other appropriate filing with and supplement to the SEC Prospectus to correct such untrue statement or omission, and deliver a number of copies of such supplement or and amendment to the each Investor as the such Investor may reasonably request;
(gf) [intentionally omitted ]
As promptly as practicable after becoming aware of such event, notify each Investor who holds Registrable Securities being sold (hor, in the event of an underwritten offering, the managing underwriters) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoingissuance by the Commission of any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time and take all lawful action to effect the withdrawal, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Companyrecession or removal of such stop order or other suspension;
(ig) Use its reasonable efforts to secure and maintain the designation of Cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Market principal national securities exchange, and the included in an inter-dealer quotation system of a registered national securities association, on or in which securities of the Registrable Securities on same class or series issued by the Principal Trading MarketCompany are then listed or included;
(jh) Provide Maintain a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(ki) Cooperate with the Investor Investors who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement registration statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investors reasonably may request and registered in such names as the Investor may reasonably request, ; and, within five (5) three business days after a Registration Statement registration statement which includes Registrable Securities is ordered declared effective by the SECCommission, the Company shall deliver, deliver and shall cause legal counsel selected by the Company to deliver, deliver to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such registration statement) an appropriate instruction and and, to the extent necessary, an opinion of such counsel;
(j) Take all such other lawful actions reasonably necessary to expedite and facilitate the disposition by the Investors of their Registrable Securities in accordance with the intended methods therefor provided in the Prospectus which are customary under the circumstances;
(k) Make generally available to its security holders as soon as practicable, but in any event not later than three (3) months after (i) the effective date (as defined in Rule 158(c) under the Securities Act) of the Registration Statement, and (ii) the effective date of each post-effective amendment to the Registration Statement, as the case may be, an earnings statement of the Company and its subsidiaries complying with Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(l) In the event of an underwritten offering, promptly include or incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the managers reasonably agree should be included therein and to which the Company does not reasonably object and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after it is notified of the matters to be included or incorporated in such Prospectus supplement or post-effective amendment;
(i) Make reasonably available for inspection by Investors, any underwriter participating in any disposition pursuant to the Registration Statement, and any attorney, accountant or other agent retained by such Investors or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and (ii) cause the Company's officers, directors and employees to supply all information reasonably requested by such Investors or any such underwriter, attorney, accountant or agent in connection with the Registration Statement, in each case, as is customary for similar due diligence examinations; PROVIDED, HOWEVER, that all records, information and documents that are designated in writing by the Company, in good faith, as confidential, proprietary or containing any material nonpublic information shall be kept confidential by such Investors and any such underwriter, attorney, accountant or agent (pursuant to an appropriate confidentiality agreement in the case of any such holder or agent), unless such disclosure is made pursuant to judicial process in a court proceeding (after first giving the Company an opportunity promptly to seek a protective order or otherwise limit the scope of the information sought to be disclosed) or is required by law, or such records, information or documents become available to the public generally or through a third party not in violation of an accompanying obligation of confidentiality; and PROVIDED, FURTHER, that, if the foregoing inspection and information gathering would otherwise disrupt the Company's conduct of its business, such inspection and information gathering shall, to the maximum extent possible, be coordinated on behalf of the Investors and the other parties entitled thereto by one firm of counsel designed by and on behalf of the majority in interest of Investors and other parties;
(n) In connection with any underwritten offering, make such representations and warranties to the Investors participating in such underwritten offering and to the managers, in form, substance and scope as are customarily made by the Company to underwriters in secondary underwritten offerings;
(o) In connection with any underwritten offering, obtain opinions of counsel to the Company (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managers) addressed to the underwriters, covering such matters as are customarily covered in opinions requested in secondary underwritten offerings (it being agreed that the matters to be covered by such opinions shall include, without limitation, directions to as of the Transfer Agent to issue certificates date of Registrable Securities (the opinion and as of the Effective Time of the Registration Statement or most recent post-effective amendment thereto, as the case may be, the absence from the Registration Statement and the Prospectus, including certificates for Registrable Securities any documents incorporated by reference therein, of an untrue statement of a material fact or the omission of a material fact required to be issued after stated therein or necessary to make the Effective Date and replacement certificates for Registrable Securities previously issuedstatements therein (in the case of the Prospectus, in light of the circumstances under which they were made) without legends or other restrictionsnot misleading, subject to compliance customary qualifications, assumptions and limitations);
(p) In connection with applicable lawany underwritten offering, obtain "cold comfort" letters and updates thereof from the independent public accountants of the Company (and, if necessary, from the independent public accountants of any subsidiary of the Company or of any business acquired by the Company, in each case for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each underwriter participating in such underwritten offering (if such underwriter has provided such letter, representations or documentation, if any, required for such cold comfort letter to be so addressed), in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with secondary underwritten offerings;
(q) In connection with any underwritten offering, deliver such documents and certificates as may be reasonably required by the managers, if any; and
(r) In the event that any broker-dealer registered under the Exchange Act shall be an "AFFILIATE" (as defined in Rule 2729(b)(1) of the rules and regulations of the National Association of Securities Dealers, Inc. (the "NASD RULES") (or any successor provision thereto)) of the Company or has a "CONFLICT OF INTEREST" (as defined in Rule 2720(b)(7) of the NASD Rules (or any successor provision thereto)) and such broker-dealer shall underwrite, participate as a member of an underwriting syndicate or selling group or assist in the distribution of any Registrable Securities covered by the Registration Statement, whether as a holder of such Registrable Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company shall assist such broker-dealer in complying with the requirements of the NASD Rules, including, without limitation, prospectus delivery requirements; and
by (lA) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor engaging a "QUALIFIED INDEPENDENT UNDERWRITER" (as defined in Rule 2720(b)(15) of the NASD Rules (or any successor provision thereto)) to participate in the preparation of the Registration Statement relating to such Registrable Securities pursuant Securities, to exercise usual standards of due diligence in respect thereof and to recommend the public offering price of such Registrable Securities, (B) indemnifying such qualified independent underwriter to the Registration Statementextent of the indemnification of underwriters provided in Section 6 hereof, and (C) providing such information to such broker- dealer as may be required in order for such broker-dealer to comply with the requirements of the NASD Rules.
Appears in 1 contract
Samples: Registration Rights Agreement (Precept Business Services Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(a) Prepare promptly, Promptly (i) prepare and file with the SEC by Commission such amendments (including post-effective amendments) to the Required Filing Date, a Registration Statement with respect and supplements to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts Prospectus as may be necessary to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement continuously effective at all times, other than during Permitted Suspension Periods, during and in compliance with the provisions of the Securities Act applicable thereto so as to permit the Prospectus forming part thereof to be current and useable by Investors for resales of the Registrable Securities for a period of two years from the date on which the Registration Statement is first declared effective by the Commission (the "Registration PeriodEFFECTIVE TIME") continuing until or such shorter period that will terminate when all the earlier of (i) the date when the Investor may sell all Registrable Securities under covered by the Registration Statement have been sold pursuant thereto in accordance with the plan of distribution provided in the Prospectus, transferred pursuant to Rule 144 without volume under the Securities Act or other otherwise transferred in a manner that results in the delivery of new securities not subject to transfer restrictions or limits or under the Securities Act (the "REGISTRATION PERIOD") and (ii) take all lawful action such that each of (A) the date Registration Statement and any amendment thereto does not, when it becomes effective, 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 Investor no longer own any statements therein, not misleading and (B) the Prospectus forming part of the Registrable SecuritiesRegistration Statement, which and any amendment or supplement thereto, does not at any time during the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any Period 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, in light of the circumstances in under which they were made, not misleading. Notwithstanding the foregoing provisions of this Section 3(a), the Company may, during the Registration Period, suspend the use of the Prospectus for a period not to exceed 60 days (whether or not consecutive) in any 12-month period if the Board of Directors of the Company determines in good faith that because of valid business reasons, including pending mergers or other business combination transactions, the planned acquisition or divestiture of assets, pending material corporate developments and similar events, it is in the best interests of the Company to suspend such use, and prior to or contemporaneously with suspending such use the Company provides the Investors with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. At the end of any such suspension period, the Company shall provide the Investors with written notice of the termination of such suspension;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during During the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Investors as set forth in the Prospectus forming part of the Registration Statement;
(ci) Permit a single firm of counsel designated by Prior to the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file Commission of any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in including any amendments thereto) and the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement distribution or any post-effective amendment, when the same has become effective; (ii) delivery 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreementsupplements thereto), provide (A) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company of any notification with respect draft copies thereof to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale Investors and reflect in any jurisdiction, or the initiation or threatening of any proceeding for such purpose; and (vi) of the occurrence of any event that to the best knowledge of the Company 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, all such comments as the case Investors (and their counsel) reasonably 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Investor;
(f) As promptly as practicable after becoming aware thereof, notify the Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, propose and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement.
Appears in 1 contract
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(a) Prepare promptly, Promptly (i) prepare and file with the SEC by Commission such amendments (including post-effective amendments) to the Required Filing Date, a Registration Statement with respect and supplements to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts Prospectus as may be necessary to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement continuously effective at and in compliance with the provisions of the Securities Act applicable thereto so as to permit the Prospectus forming part thereof to be current and useable by Investors for resales of the Registrable Securities for a period of one (1) year from the date on which the Registration Statement is first declared effective by the Commission (the "Effective Time") or such shorter period that will terminate when all timesthe Registrable Securities covered by the Registration Statement have been sold pursuant thereto in accordance with the plan of distribution provided in the Prospectus, other than during Permitted Suspension Periods, during transferred pursuant to Rule 144 under the period Securities Act or otherwise transferred in a manner that results in the delivery of new securities not subject to transfer restrictions under the Securities Act (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or and (ii) take all lawful action such that each of (A) the date Registration Statement and any amendment thereto does not, when it becomes effective, 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 Investor no longer own any statements therein, not misleading and (B) the Prospectus forming part of the Registrable SecuritiesRegistration Statement, which and any amendment or supplement thereto, does not at any time during the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any Period 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, in light of the circumstances in under which they were made, not misleading;. Notwithstanding the foregoing provisions of this Section 3(a), the Company may, during the Registration Period, suspend the use of the Prospectus for a period not to exceed thirty (30) days (whether or not consecutive) in any 12-month period if the Board of Directors of the Company determines in good faith that because of valid business reasons, including pending mergers or other business combination transactions, the planned acquisition or divestiture of assets, pending material corporate developments and similar events, it is in the best interests of the Company to suspend such use, and prior to or contemporaneously with suspending such use the Company provides the Investors with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. At the end of any such suspension period, the Company shall provide the Investors with written notice of the termination of such suspension.
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during During the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Investors as set forth in the Prospectus forming part of the Registration Statement;
(ci) Permit a single firm Prior to the filing with the Commission of counsel designated by any Registration Statement (including any amendments thereto) and the distribution or delivery of any Prospectus (including any supplements thereto), provide draft copies thereof to the Investors and reflect in such documents all such comments as the Investors (and their counsel) reasonably may propose and (ii) furnish to each Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review whose Registrable Securities are included in the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such its legal counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment identified to the Registration Statement is proposed to be filed; Company, (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (iA) promptly after the same is prepared and publicly distributed, filed with the SECCommission, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectusProspectus, and each amendment or supplement thereto, and (iiB) such number of copies of a prospectus, the Prospectus and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(fi) Register or qualify the Registrable Securities covered by the Registration Statement under such securities or "blue sky" laws of such jurisdictions as the Investors who hold a majority-in-interest of the Registrable Securities being offered reasonably request, (ii) prepare and file in such jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take all such other lawful actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all such other lawful actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d);
(e) As promptly as practicable after becoming aware thereofof such event, notify the each Investor of the happening occurrence of any event of which the Company has knowledgeevent, as a result of which the prospectus Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts and promptly to prepare a supplement or an amendment to the Registration Statement or other appropriate filing with and supplement to the SEC Prospectus to correct such untrue statement or omission, and deliver a number of copies of such supplement or and amendment to the each Investor as the such Investor may reasonably request;
(gf) [intentionally omitted ]
As promptly as practicable after becoming aware of such event, notify each Investor who holds Registrable Securities being sold (hor, in the event of an underwritten offering, the managing underwriters) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoingissuance by the Commission of any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time and take all lawful action to effect the withdrawal, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Companyrecession or removal of such stop order or other suspension;
(ig) Use its reasonable efforts to secure and maintain the designation of Cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Market any national securities exchange, and the included in any inter-dealer quotation system of a registered national securities association, on or in which securities of the Registrable Securities on same class or series issued by the Principal Trading MarketCompany are then listed or included;
(jh) Provide Maintain a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(ki) Cooperate with the Investor Investors who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investors reasonably may request and registered in such names as the Investor may reasonably request, ; and, within five (5) three business days after a Registration Statement which includes Registrable Securities is ordered declared effective by the SECCommission, the Company shall deliver, deliver and shall cause legal counsel selected by the Company to deliver, deliver to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such Registration Statement) an appropriate instruction and and, to the extent necessary, an opinion of such counsel;
(j) Take all such other lawful actions reasonably necessary to expedite and facilitate the disposition by the Investors of their Registrable Securities in accordance with the intended methods therefor provided in the Prospectus which are customary under the circumstances;
(k) Make generally available to its security holders as soon as practicable, but in any event not later than thirteen (13) months after (i) the effective date (as defined in Rule 158(c) under the Securities Act) of the Registration Statement, and (ii) the effective date of each post-effective amendment to the Registration Statement, as the case may be, an earnings statement of the Company and its subsidiaries complying with Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(l) In the event of an underwritten offering, promptly include or incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as any managing underwriter reasonably agrees should be included therein and to which the Company does not reasonably object and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after it is notified of the matters to be included or incorporated in such Prospectus supplement or post-effective amendment;
(i) Make reasonably available for inspection by Investors, any underwriter participating in any disposition pursuant to the Registration Statement, and any attorney, accountant or other agent retained by such Investors or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and (ii) cause the Company's officers, directors and employees to supply all information reasonably requested by such Investors or any such underwriter, attorney, accountant or agent in connection with the Registration Statement, in each case, as is customary for similar due diligence examinations; provided, however, that all records, information and documents that are designated in writing by the Company, in good faith, as confidential, proprietary or containing any material non-public information shall be kept confidential by such Investors and any such underwriter, attorney, accountant or agent (pursuant to an appropriate confidentiality agreement in the case of any such holder or agent), unless such disclosure is made pursuant to judicial process in a court proceeding (after first giving the Company an opportunity promptly to seek a protective order or otherwise limit the scope of the information sought to be disclosed) or is required by law, or such records, information or documents become available to the public generally or through a third party not in violation of an accompanying obligation of confidentiality; provided, however, that such records, information and documents shall be used by such person solely for the purpose of determining that disclosures made in the Registration Statement are true and correct, and for no other purpose; and provided further that, if the foregoing inspection and information gathering would otherwise disrupt the Company's conduct of its business, such inspection and information gathering shall, to the maximum extent possible, be coordinated on behalf of the Investors and the other parties entitled thereto by one firm of counsel designed by and on behalf of the majority in interest of Investors and other parties;
(n) In connection with any underwritten offering, make such representations and warranties to the Investors participating in such underwritten offering and to the managers, in form, substance and scope as are customarily made by the Company to underwriters in secondary underwritten offerings;
(o) In connection with any underwritten offering, obtain opinions of counsel to the Company (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managers) addressed to the underwriters, covering such matters as are customarily covered in opinions requested in secondary underwritten offerings (it being agreed that the matters to be covered by such opinions shall include, without limitation, directions to as of the Transfer Agent to issue certificates date of Registrable Securities (the opinion and as of the Effective Time of the Registration Statement or most recent post-effective amendment thereto, as the case may be, the absence from the Registration Statement and the Prospectus, including certificates for Registrable Securities any documents incorporated by reference therein, of an untrue statement of a material fact or the omission of a material fact required to be issued after stated therein or necessary to make the Effective Date and replacement certificates for Registrable Securities previously issuedstatements therein (in the case of the Prospectus, in light of the circumstances under which they were made) without legends or other restrictionsnot misleading, subject to compliance customary limitations);
(p) In connection with applicable lawany underwritten offering, obtain "cold comfort" letters and updates thereof from the independent public accountants of the Company (and, if necessary, from the independent public accountants of any subsidiary of the Company or of any business acquired by the Company, in each case for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each underwriter participating in such underwritten offering (if such underwriter has provided such letter, representations or documentation, if any, required for such cold comfort letter to be so addressed), in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with secondary underwritten offerings;
(q) In connection with any underwritten offering, deliver such documents and certificates as may be reasonably required by the managers, if any; and
(r) In the event that any broker-dealer registered under the Exchange Act shall be an "Affiliate" (as defined in Rule 2729(b)(1) of the rules and regulations of the NASD (the "NASD Rules") (or any successor provision thereto)) of the Company or has a "conflict of interest" (as defined in Rule 2720(b)(7) of the NASD Rules (or any successor provision thereto)) and such broker-dealer shall underwrite, participate as a member of an underwriting syndicate or selling group or assist in the distribution of any Registrable Securities covered by the Registration Statement, whether as a holder of such Registrable Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company shall assist such broker-dealer in complying with the requirements of the NASD Rules, including, without limitation, prospectus delivery requirements; and
by (lA) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor engaging a "qualified independent underwriter" (as defined in Rule 2720(b) (15) of the NASD Rules (or any successor provision thereto)) to participate in the preparation of the Registration Statement relating to such Registrable Securities pursuant Securities, to exercise usual standards of due diligence in respect thereof and to recommend the public offering price of such Registrable Securities, (B) indemnifying such qualified independent underwriter to the Registration Statementextent of the indemnification of underwriters provided in Section 6(a) hereof, and (C) providing such information to such broker-dealer as may be required in order for such broker--dealer to comply with the requirements of the NASD Rules.
Appears in 1 contract
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(a) Prepare promptly, Promptly (i) prepare and file with the SEC by Commission such amendments (including post-effective amendments) to the Required Filing Date, a Registration Statement with respect and supplements to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts Prospectus as may be necessary to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement continuously effective at and in compliance with the provisions of the Securities Act applicable thereto so as to permit the Prospectus forming part thereof to be current and useable by Investors for resales of the Registrable Securities for a period of three years (such period to be extended by a period equal to any change in the Mandatory Conversion Date (as defined in the Amendment) pursuant to the Amendment) from the date on which the Registration Statement is first declared effective by the Commission (the "Effective Time") or such shorter period that will terminate when all timesthe Registrable Securities covered by the Registration Statement have been sold pursuant thereto in accordance with the plan of distribution provided in the Prospectus, other than during Permitted Suspension Periods, during transferred pursuant to Rule 144 under the period Securities Act or otherwise transferred in a manner that results in the delivery of new securities not subject to transfer restrictions under the Securities Act (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or and (ii) take all lawful action such that each of (A) the date Registration Statement and any amendment thereto does not, when it becomes effective, 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 Investor no longer own any statements therein, not misleading and (B) the Prospectus forming part of the Registrable SecuritiesRegistration Statement, which and any amendment or supplement thereto, does not at any time during the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any Period 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, in light of the circumstances in under which they were made, not misleading;. Notwithstanding the foregoing provisions of this Section 3(a), the Company may, during the Registration Period, suspend the use of the Prospectus for a period not to exceed 60 days (whether or not consecutive) in any 12-month period if the Board of Directors of the Company determines in good faith that because of valid business reasons, including pending mergers or other business combination transactions, the planned acquisition or divestiture of assets, pending material corporate developments and similar events, it is in the best interests of the Company to suspend such use, and prior to or contemporaneously with suspending such use, the Company provides the Investors with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. At the end of any such suspension period, the Company shall provide the Investors with written notice of the termination of such suspension.
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during During the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Investors as set forth in the Prospectus forming part of the Registration Statement;
(ci) Permit a single firm Prior to the filing with the Commission of counsel designated by any Registration Statement (including any amendments thereto) and the distribution or delivery of any Prospectus (including any supplements thereto), provide draft copies thereof to the Investors and reflect in such documents all such comments as the Investors (and their counsel) reasonably may propose with regard to Holder ownership and the Plan of Distribution included therein and (ii) furnish to each Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review whose Registrable Securities are included in the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such its legal counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment identified to the Registration Statement is proposed to be filed; Company, (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (iA) promptly after the same is prepared and publicly distributed, filed with the SECCommission, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectusProspectus, and each amendment or supplement thereto, and (iiB) such number of copies of a prospectus, the Prospectus and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(fi) Register or qualify the Registrable Securities covered by the Registration Statement under such securities or "blue sky" laws of such jurisdictions as the Investors who hold a majority-in-interest of the Registrable Securities being offered reasonably request, (ii) prepare and file in such jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take all such other lawful actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all such other lawful actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (B) subject itself to general taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(e) As promptly as practicable after becoming aware thereofof such event, notify the each Investor of the happening occurrence of any event of which the Company has knowledgeevent, as a result of which the prospectus Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts and promptly to prepare a supplement or an amendment to the Registration Statement or other appropriate filing with and supplement to the SEC Prospectus to correct such untrue statement or omission, and deliver a number of copies of such supplement or and amendment to the each Investor as the such Investor may reasonably request;
(gf) [intentionally omitted ]
As promptly as practicable after becoming aware of such event, notify each Investor who holds Registrable Securities being sold (hor, in the event of an underwritten offering, the managing underwriters) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoingissuance by the Commission of any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time and take all lawful action to effect the withdrawal, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Companyrecession or removal of such stop order or other suspension;
(i) Use its reasonable efforts to secure and maintain the designation of Cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Market principal national securities exchange, and the included in an inter-dealer quotation system of a registered national securities association, on or in which securities of the Registrable Securities on same class or series issued by the Principal Trading MarketCompany are then listed or included;
(jh) Provide Maintain a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(ki) Cooperate with the Investor Investors who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investors reasonably may request and registered in such names as the Investor may reasonably request, ; and, within five (5) three business days after a Registration Statement which includes Registrable Securities is ordered declared effective by the SECCommission, the Company shall deliver, deliver and shall cause legal counsel selected by the Company to deliver, deliver to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such Registration Statement) an appropriate instruction and and, to the extent necessary, an opinion of such counsel;
(j) Take all such other lawful actions reasonably necessary to expedite and facilitate the disposition by the Investors of their Registrable Securities in accordance with the intended methods therefor provided in the Prospectus which are customary under the circumstances;
(k) Make generally available to its security holders as soon as practicable, but in any event not later than 18 months after (i) the effective date (as defined in Rule 158(c) under the Securities Act) of the Registration Statement, and (ii) the effective date of each post-effective amendment to the Registration Statement, as the case may be, an earnings statement of the Company and its subsidiaries complying with Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(l) In the event of an underwritten offering, promptly include or incorporate in a Prospectus supplement or post- effective amendment to the Registration Statement such information as the managers reasonably agree should be included therein and to which the Company does not reasonably object and make all required filings of such Prospectus supplement or post- effective amendment as soon as practicable after it is notified of the matters to be included or incorporated in such Prospectus supplement or post-effective amendment;
(i) Make reasonably available for inspection by Investors, any underwriter participating in any disposition pursuant to the Registration Statement, and any attorney, accountant or other agent retained by such Investors or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and (ii) cause the Company's officers, directors and employees to supply all information reasonably requested by such Investors or any such underwriter, attorney, accountant or agent in connection with the Registration Statement, in each case, as is customary for similar due diligence examinations; provided, however, that all records, information and documents that are designated in writing by the Company, in good faith, as confidential, proprietary or containing any material non-public information shall be kept confidential by such Investors and any such underwriter, attorney, accountant or agent (pursuant to an appropriate confidentiality agreement in the case of any such holder or agent), unless such disclosure is made pursuant to judicial process in a court proceeding (after first giving the Company an opportunity promptly to seek a protective order or otherwise limit the scope of the information sought to be disclosed) or is required by law, or such records, information or documents become available to the public generally or through a third party not in violation of an accompanying obligation of confidentiality; and provided further that, if the foregoing inspection and information gathering would otherwise disrupt the Company's conduct of its business, such inspection and information gathering shall, to the maximum extent possible, be coordinated on behalf of the Investors and the other parties entitled thereto by one firm of counsel designed by and on behalf of the majority in interest of Investors and other parties;
(n) In connection with any underwritten offering, make such representations and warranties to the Investors participating in such underwritten offering and to the managers, in form, substance and scope as are customarily made by the Company to underwriters in secondary underwritten offerings;
(o) In connection with any underwritten offering, obtain opinions of counsel to the Company (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managers) addressed to the underwriters, covering such matters as are customarily covered in opinions requested in secondary underwritten offerings (it being agreed that the matters to be covered by such opinions shall include, without limitation, directions to as of the Transfer Agent to issue certificates date of Registrable Securities (the opinion and as of the Effective Time of the Registration Statement or most recent post- effective amendment thereto, as the case may be, the absence from the Registration Statement and the Prospectus, including certificates for Registrable Securities any documents incorporated by reference therein, of an untrue statement of a material fact or the omission of a material fact required to be issued after stated therein or necessary to make the Effective Date and replacement certificates for Registrable Securities previously issuedstatements therein (in the case of the Prospectus, in light of the circumstances under which they were made) without legends or other restrictionsnot misleading, subject to compliance customary limitations);
(p) In connection with applicable lawany underwritten offering, obtain "cold comfort" letters and updates thereof from the independent public accountants of the Company (and, if necessary, from the independent public accountants of any subsidiary of the Company or of any business acquired by the Company, in each case for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each underwriter participating in such underwritten offering (if such underwriter has provided such letter, representations or documentation, if any, required for such cold comfort letter to be so addressed), in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with secondary underwritten offerings;
(q) In connection with any underwritten offering, deliver such documents and certificates as may be reasonably required by the managers, if any; and
(r) In the event that any broker-dealer registered under the Exchange Act shall be an "Affiliate" (as defined in Rule 2729(b)(1) of the rules and regulations of the National Association of Securities Dealers, Inc. (the "NASD Rules") (or any successor provision thereto)) of the Company or has a "conflict of interest" (as defined in Rule 2720(b)(7) of the NASD Rules (or any successor provision thereto)) and such broker- dealer shall underwrite, participate as a member of an underwriting syndicate or selling group or assist in the distribution of any Registrable Securities covered by the Registration Statement, whether as a holder of such Registrable Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company shall assist such broker-dealer in complying with the requirements of the NASD Rules, including, without limitation, prospectus delivery requirements; and
by (lA) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor engaging a "qualified independent underwriter" (as defined in Rule 2720(b)(15) of the NASD Rules (or any successor provision thereto)) to participate in the preparation of the Registration Statement relating to such Registrable Securities pursuant Securities, to exercise usual standards of due diligence in respect thereof and to recommend the public offering price of such Registrable Securities, (B) indemnifying such qualified independent underwriter to the Registration Statementextent of the indemnification of underwriters provided in Section 5 hereof, and (C) providing such information to such broker-dealer as may be required in order for such broker- dealer to comply with the requirements of the NASD Rules.
Appears in 1 contract
Samples: Registration Rights Agreement (Network Connection Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptlyand file, and file with the SEC by the Required Filing Date, Date a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Initial Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, times during the period (the "Registration Period") continuing until the earlier of (i) the date when the Investor Investors may sell all Registrable Securities under Rule 144 144(k) without volume or other restrictions or limits or limits, (ii) the date the Investor Investors no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, or (iii) two (2) years after the Effective Date of the Registration Statement;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor Investors and VFIN (which, until further notice, shall be deemed to be Xxxxxxx Krieger & Xxxxxx Prager LLP, Attn: Xxxxxx XxxxxxxSamuel Krieger, Esq., which firm has requested ) ("Investor's Xxxxxxx") (xxxxx Investor's Xxxxxxx xxx xxreed to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto for a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor Investors and VFIN and, if applicable, the Investor's Investors' Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (Statement, copies or, in the case of oral comments, summaries of such comments (as such comments relate to the Investor) shall be promptly furnished by the Company to the Investor)Investors; and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) that relate to Investors not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor Investors shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel Investors and/or Investors' Counsel
(i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, all correspondence to, with, or from the SEC, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto (as contemplated in Section 3(d) above) and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(f) As promptly as practicable after becoming aware thereof, notify the each Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;
(g) [intentionally omitted ]As promptly as practicable after becoming aware thereof, notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of a Notice of Effectiveness or any notice of effectiveness or any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time;
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of Notwithstanding the foregoing, and if at any time or from time to time after the date of effectiveness of the Registration Statement, the Company notifies the Investors in writing of the existence of a Potential Material Event, the Investors shall not offer or sell any Registrable Securities, or engage in limitation thereof, not disclose any other transaction involving or relating to the Registrable Securities, from the time of the giving of notice with respect to a Potential Material Event until such Investor receives written notice from the Company that such Potential Material Event either has been disclosed to the public or no longer constitutes a Potential Material Event; provided, however, that the Company may not so suspend the right to such holders of Registrable Securities during the periods the Registration Statement is required to be in effect other than during a Permitted Suspension Period (and the applicable provisions of Section 2(b) shall apply with respect to any non-public material information regarding the Company;
such suspension other than during a Permitted Suspension Period). The term "Permitted Suspension Period" means up to two such suspension periods, each of which suspension period shall not either (i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
be for more than fifteen (j15) Provide a transfer agent business days or ("Transfer Agent"ii) and registrar, which may be a single entity, for the Registrable Securities not later begin less than the initial Effective Date;
ten (k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (510) business days after the last day of the preceding suspension (whether or not such last day was during or after a Registration Statement which includes Registrable Securities is ordered effective Permitted Suspension Period); provided further that the Company shall, if lawful to do so, provide the Investor with at least two (2) business days' notice of the existence (but not the substance of) a Potential Material Event. Investor shall treat any information with respect to Potential Material Event as confidential. The Investor shall indemnify and hold harmless the Company, its employees, officers, directors, agents, and partners, and their respective Affiliates, from and against all claims, losses, damages, costs (including the costs of preparation and attorney's fees) and expenses suffered regarding any trades by the SECInvestor, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investorits affiliates or any person(s) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by acquiring information from the Investor of the Registrable Securities pursuant to the Registration Statementas a tippee or otherwise.
Appears in 1 contract
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:.
(a) Prepare promptly, and file with the SEC by forty-five (45) days after the Required Filing initial Closing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) ), above, and thereafter use used its reasonable best efforts to cause such each Registration Statement relating to Registrable Securities to become effective by on the Required Effective Date earlier of (i) five days after notice from the Securities and Exchange Commission that the Registration Statement may be declared effective, or (b) ninety (90) days after the Closing Date, and keep the Registration Statement Statements effective at all times, other than during Permitted Suspension Periods, during times until the period earliest (the "Registration Period") continuing until the earlier of (i) the date that is two years after the Closing Date (ii) the date when the Investor Investors may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (iiiii) the date the Investor Investors no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material materiel fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit The Company shall permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") Initial Investors to review the Registration Statement and all amendments and supplements thereto a as reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Furnish to each Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement covering any or all of the whose Registrable Securities or the initiation of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company makes any statement made are included 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 and its legal counsel identified 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(fe) As promptly as practicable after becoming aware thereofof such event, notify the Investor each investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;
(f) Notwithstanding the foregoing, if at any time or from time to time after the date of effectiveness of the Registration Statement, the Company notifies the Investors in writing of the existence of a Potential Material Event, the Investors shall not offer or sell any Registerable Shares, or engage in any other transaction involving or relating to the Registrable Shares, from the time of the giving of notice with respect to a Potential Material Event until such Investor receives written notice from the Company that such Potential Material Event either has been disclosed to the public or no longer constitutes a Potential Material Event; provided, however, that the Company may not so suspend the right to such holders of Registrable Shares for more than two (2) twenty (20) day periods in the aggregate during any 12-month period with at least a ten (10) business day interval between such periods, during the period the Registration Statement is required to be in effect;
(g) [intentionally omitted ]As promptly as practicable after becoming aware of such event, notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of a Notice of Effectiveness or any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time;
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its commercially reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on as a National Association of Securities Dealers Automated Quotations System ("NASDAQ") "Small Capitalization" within the Principal Trading Market meaning of Rule 11Aa2-1 of the SEC under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the quotation of the Registrable Securities on of the Principal Trading NASDAQ Small Cap Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar; or if, which may be a single entity, for despite the Registrable Securities not later than Company's commercially reasonable efforts to satisfy the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SECpreceding clause, the Company shall deliver, and shall cause legal counsel selected by the Company to deliveris unsuccessful in doing so, to the Transfer Agent secure NASDAQ/OTC Bulletin Board authorization and quotation for the such Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall includeand, without limitation, directions to limiting the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor generality of the foregoing, to arrange for at least two market makers to register with the National Association of Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securities pursuant to the Registration Statement.Securities;
Appears in 1 contract
Obligations of the Company. In connection with the registration any Registration of the Registrable SecuritiesSecurities hereunder, the Company shall do each of have the followingfollowing obligations:
(a) Prepare promptly, a. The Company shall prepare and file with the SEC by no later than the Required applicable Filing DateDeadline, a such Registration Statement Statements (or prospectus supplement) with respect to not less than the number of Registrable Securities as provided in Section 2(a) above), and thereafter use its reasonable best efforts to cause each such Registration Statement relating to Registrable Securities to become effective by as soon as possible after such filing, but in any event shall use its reasonable best efforts to cause each such Registration Statement relating to Registrable Securities to become effective no later than the Required Effective Date applicable Registration Deadline, and shall use its reasonable best efforts to keep the Registration Statement current and effective pursuant to Rule 415 at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing times after its effective date until such date as is the earlier of (i) the date when on which all of the Investor may sell all Registrable Securities under included in such Registration Statement have been sold pursuant to such Registration Statement or pursuant to Rule 144 without volume or other restrictions or limits or 144, (ii) the date upon which there are no Notes or Registrable Securities held by Investors and (iii) the Investor no longer own any first date following the first anniversary of the Closing Date on which all of the Registrable SecuritiesSecurities included in such Registration Statement (in the opinion of counsel to the Investors) may be immediately sold to the public without registration or restriction (including without limitation as to volume by each holder thereof), and without compliance with any “current public information” requirement, pursuant to Rule 144 under the Securities Act (the “Registration Period”), which Registration Statement (including any amendments or supplements thereto and prospectuses Prospectuses contained therein) therein or related thereto), except for information provided in writing by an Investor pursuant to Section 4(a), shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in light therein not misleading. In the event that Form S-3 is not available for the registration of the circumstances resale of any Registrable Securities hereunder (but, for the avoidance of doubt, without in which they were madeany way affecting the Company’s obligation to Register the resale of the Registrable Securities on such other form as is available, not misleading;as provided in Section 2(a)), (A) the Company shall undertake to file, within twenty (20) days of such time as such form is available for such Registration, a post-effective amendment to the Registration Statement then in effect, or otherwise file a Registration Statement on Form S-3, registering such Registrable Securities on Form S-3; provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement (or post-effective amendment) on Form S-3 covering such Registrable Securities has been declared effective by the SEC, and (B) the Company shall provide that any Registration Statement on Form S-3 filed hereunder shall incorporate documents by reference (including by way of forward incorporation by reference) to the maximum extent possible. Notwithstanding anything to the contrary contained herein, to the extent the Company is a well-known seasoned issuer (as defined in Rule 405) (a “WKSI”) at a time when it is required to file a Registration Statement pursuant to this Agreement, the Company shall file such Registration Statement as an “automatic shelf registration statement” (as defined in Rule 405 under the Securities Act) on Form S-3 (an “Automatic Registration Statement”) in accordance with the requirements of the Securities Act that covers the Registrable Securities. The Company represents and warrants that, as of the date of this Agreement, the Company is a WKSI and is eligible to use Form S-3.
(b) Prepare b. The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the each Registration Statement and the prospectus Prospectus used in connection with the each Registration Statement as may be necessary to keep the each Registration Statement current and effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, shall comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the each Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the such Registration Statement;
. Without limiting the foregoing, if at any time following the filing of a Registration Statement at which the Company is required to re-evaluate its Form S-3 eligibility or WKSI status for purposes of such Registration Statement the Company determines that it is not eligible to register the Registrable Securities on Form S-3 or is not a WKSI, the Company shall use its reasonable best efforts to (ci) Permit a single firm of counsel designated by the Investor as promptly as practicable, (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel"A) to review if the Registration Statement and is an Automatic Registration Statement, post-effectively amend the Registration Statement to a Registration Statement that is not automatically effective, or file a new Registration Statement on Form S-3, covering all amendments and supplements thereto a reasonable period of time the Registrable Securities, or (but not less than three (3B) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless if the Company reasonably determines that is not eligible at such document is required by law time to be so filed;
file a Registration Statement on Form S-3, post-effectively amend the Registration Statement to a Registration Statement on Form S-1, or file a new Registration Statement on Form S-1, covering all of the Registrable Securities; (dii) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to have such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment or Registration Statement declared effective by the SEC; and (iii) keep such Registration Statement effective during the Registration Period. In addition, prior to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies expiration of an Automatic Shelf Registration, the Company whether there will be shall file a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a new Registration Statement (copies orwhich shall be on Form S-3 and shall be an Automatic Registration Statement, in each case to the case of oral comments, summaries of such comments shall be promptly furnished by extent the Company is eligible to do so) covering the Investor); and Registrable Securities. In the event that on any Trading Day (Das defined below) with respect to (the “Registration Trigger Date”) the number of shares available under the Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements Statements filed pursuant to the Registration Statement or Prospectus or for additional information; (iii) this Agreement is insufficient to cover all of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement covering any or Registrable Securities, including all of the Registrable Securities issued or issuable upon conversion of, or otherwise pursuant to or in respect of, the initiation Notes (disregarding for such purpose any condition to the exercise of conversion rights under the Indenture, and without giving effect to the Conversion Share Cap or any proceedings for that purpose; (iv) if at any time any other limitation on conversion of the representations or warranties Notes, and assuming for such purpose that all conversions of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to Notes will be true and correct in all material respects; (v) of the receipt settled by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In additionPhysical Settlement), the Company shall furnish amend the Investor's Counsel with copies Registration Statements, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover the total number of all intended written responses Registrable Securities so issued or issuable (disregarding for such purpose any condition to the comments contemplated in clause (C) exercise of this Section 3(d) not later than one (1) business day in advance conversion rights under the Indenture, and without giving effect to the Conversion Share Cap or any other limitation on conversion of the filing Notes, and assuming for such purpose that all conversions of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributedNotes will be settled by Physical Settlement), filed with the SEC, or received by the Company, one (1) copy as of the Registration StatementTrigger Date as soon as practicable, each preliminary prospectus and prospectus, and each but in any event within twenty (20) days after the Registration Trigger Date. The Company shall use its reasonable best efforts to cause such amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, and/or new Registration Statement to become effective as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Investor;
(f) As promptly soon as practicable after becoming aware following the filing thereof, notify the Investor of the happening of but in any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company such amendment and/or new Registration Statement to deliver, to the Transfer Agent for the Registrable Securities become effective within sixty (with copies to the Investor60) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor days of the Registrable Securities pursuant to the Registration Statement.Registration
Appears in 1 contract
Samples: Registration Rights Agreement (Brookdale Senior Living Inc.)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:.
(a) Prepare promptly, and file with the SEC by the Required Filing Date, Date a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, times during the period (the "Registration Period") continuing until the earlier earliest of (i) the date that is two (2) years after the last day of the calendar month following the month in which the closing at the end of the Final Repricing Period occurs, (ii) the date when the Investor Investors may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (iiiii) the date the Investor Investors no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit The Company shall permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") Initial Investors to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;.
(d) Notify the Investor and the each Investor, such Investor's Counsel and any managing underwriters immediately legal counsel identified to the Company (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx, ATTN: Xxxxxx Xxxxxxx, Esq.; each, an "Investor's Counsel") (and, in the case of (i)(A) below, not less than three five (35) business days prior to such filing) and (if requested by any such personPerson) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the InvestorInvestors); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings Proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 Proceeding for such purpose; and (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel Investors with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor Investors shall have the opportunity to comment thereon;.
(e) Furnish to the each Investor and to such Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one two (12) copy copies of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(f) As promptly as practicable after becoming aware thereof, notify the each Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;
(g) [intentionally omitted ]As promptly as practicable after becoming aware thereof, notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of a Notice of Effectiveness or any notice of effectiveness or any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time;
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of Notwithstanding the foregoing, and if at any time or from time to time after the date of effectiveness of the Registration Statement, the Company notifies the Investors in writing of the existence of a Potential Material Event, the Investors shall not offer or sell any Registrable Securities, or engage in limitation thereof, not disclose any other transaction involving or relating to the Registrable Securities, from the time of the giving of notice with respect to a Potential Material Event until such Investor receives written notice from the Company that such Potential Material Event either has been disclosed to the public or no longer constitutes a Potential Material Event; provided, however, that the Company may not so suspend the right to such holders of Registrable Securities for more than two twenty (20) day periods in the aggregate during any non12-public material information regarding month period ("Suspension Period") with at least a ten (10) business day interval between such periods, during the Companyperiods the Registration Statement is required to be in effect;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market "OTC Bulletin Board Market" of the National Association of Securities Dealers Automated Quotation System ("NASDAQ") within the meaning of Rule 11Aa2-1 of the SEC under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the quotation of the Registrable Securities on The NASDAQ Bulletin Board Market; and, without limiting the Principal Trading Marketgenerality of the foregoing, to arrange for at least two market makers to register with the National Association of Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securities;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(k) Cooperate with the Investor Investors to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor Investors may reasonably request, and, within five three (53) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such Registration Statement) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement.
Appears in 1 contract
Obligations of the Company. In connection with Whenever required under Sections 1.1, 1.2 or 1.3 of this Exhibit A to effect the registration of the any Registrable Securities, the Company shall do each comply with the applicable obligations of the following:
(a) Prepare promptlyCompany under the Agreement, including Sections 2, 3, 5 and file with 6 of the SEC by the Required Filing Date, a Registration Statement with respect Agreement. EXHIBIT B [FORM OF] JOINDER [DATE] [COMPANY] [ADDRESS] Ladies and Gentlemen: Reference is made to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all timesRights Agreement, other than during Permitted Suspension Periodsdated as of [?], during the period 2007 (the "Registration PeriodAGREEMENT"), with [BUYER] (the "Company"). Capitalized terms used and not otherwise defined herein are used herein as defined in the Agreement. The undersigned ("TRANSFEREE") continuing until the earlier of hereby: (i) acknowledges receipt of a copy of the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or Agreement; (ii) notifies the Company that, on [DATE], Transferee acquired from [INSERT NAME OF ASSIGNING STOCKHOLDER] [DESCRIBE THE REGISTRABLE SECURITIES THAT WERE transferred] (the "TRANSFERRED SECURITIES") and an assignment of such transferor's rights under the Agreement with respect and to the Transferred Securities, and the Transferee has assumed from such transferor the liability for any and all obligations under the Agreement arising after the date of transfer related to the Investor no longer own any Transferred Securities; (iii) advises the Company that, immediately after such transfer the further disposition of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during the Registration Period, comply with the provisions of Transferred Securities is restricted under the Securities Act or subject to volume or manner of sale limitations under Rule 144; and (iv) agrees to be bound by all terms of the Agreement with respect to the disposition of all Registrable Transferred Securities covered by the Registration Statement until such time as all applicable to a Holder of such Registrable Transferred Securities have been disposed as if the Transferee was an original signatory to the Agreement. Notices to the Transferee for purposes of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor (whichAgreement may be addressed to: [___________], until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP[___________], Attn: Xxxxxx Xxxxxxx[_______], Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SECFax: [________]. This document shall be governed by, and not file any document construed in a form accordance with, the laws of the State of New York, applicable to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law contracts executed in and to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for performed entirely within that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleadingState. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Investor;
(f) As promptly as practicable after becoming aware thereof, notify the Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement.TRANSFEREE] [By:] _______________________ Name: [Title:]
Appears in 1 contract
Samples: Registration Rights Agreement (Triarc Companies Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptly, and file with the SEC by the Required Filing Date, Date a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, times other than during Permitted Suspension Periods, Periods during the period (the "Registration Period") continuing until the earlier of (i) the date when the Investor Investors may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits (the "Unrestricted Sale Date") or (ii) the date the Investor Investors no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor Initial Investors (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLPPrager llp, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the each Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the InvestorInvestors); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish communicate with the Investor's Counsel with copies of all intended regard to its proposed written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of ), so that, to the filing of such responses with extent practicable, the SEC so that the Investor Investors shall have the opportunity to comment thereon;
(e) Furnish to the each Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(f) As promptly as practicable after becoming aware thereof, notify the each Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;
(g) [intentionally omitted ]As promptly as practicable after becoming aware thereof, notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of a Notice of Effectiveness or any notice of effectiveness or any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time;
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Notwithstanding the foregoing, if at any time or from time to time after the date of effectiveness of the Registration Statement, the Company notifies the Investors in writing that the effectiveness of the Registration Statement is suspended for any reason, whether due to a Potential Material Event or otherwise, the Investors shall not offer or sell any Registrable Securities, or engage in any other transaction involving or relating to the Registrable Securities, from the time of the giving of such notice until such Investor receives written notice from the Company that such the effectiveness of the Registration Statement has been restored, whether because the Potential Material Event has been disclosed to the public or it no longer constitutes a Potential Material Event or otherwise; provided, however, that the Company may not so suspend the right to such holders of Registrable Securities during the periods the Registration Statement is required to be in effect other than during a Permitted Suspension Period (and the applicable provisions of Section 2(b) shall apply with respect to any such suspension other than during a Permitted Suspension Period);
(j) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market within the meaning of Rule 11Aa2-1 of the SEC under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the quotation of the Registrable Securities on the Principal Trading Market;
(jk) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(kl) Cooperate with the Investor Investors who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor Investors may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such Registration Statement) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including Securities(including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable lawlaw and other rules and regulations, including, without limitation, prospectus delivery requirements; and
(lm) Take all other reasonable administrative steps and actions (including the participation of Company counsel) necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement; provided, however, that the foregoing does not require that the Company take any steps whatsoever regarding the identification or selection of a broker to sell the Registrable Securities, the identification of buyers of the Registrable Securities, or the negotiation of the sale terms of the Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Pluristem Life Systems Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptly, and file with the SEC by the Required Filing Date, Date a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, times other than during Permitted Suspension Periods, Periods during the period (the "Registration Period") continuing until the earlier of (i) the date when the Investor Investors may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits (the "Unrestricted Sale Date") or (ii) the date the Investor Investors no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor Initial Investors (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLPPrager llp, Attn: Xxxxxx X. Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objectsobjects (provided, unless however, that if Company Counsel reasonably asserts that the Company reasonably determines that form of such document is required legally sufficient for filing, and Investor's Counsel continues to reasonably object, then Company Counsel and Investor's Counsel will work in good faith to resolve any dispute for a period of ten (10) business days, and the Required Filing Date and Initial Required Effective Date will be extended for a period which is the shorter of (x) such ten (10) business day period or (y) one (1) business day after such dispute is resolved; and, provided further, that if after such ten (10) business day period, if Company Counsel and Investor's Counsel have not resolved any pending disputes regarding the form of such document, then the Company shall have the right to file such document notwithstanding objection by law to be so filedInvestor's Counsel);
(d) Notify the each Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the InvestorInvestors); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish communicate with the Investor's Counsel with copies of all intended regard to its proposed written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of ), so that, to the filing of such responses with extent practicable, the SEC so that the Investor Investors shall have the opportunity to comment thereon;
(e) Furnish to the each Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(f) As promptly as practicable after becoming aware thereof, notify the each Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;
(g) [intentionally omitted ]As promptly as practicable after becoming aware thereof, notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of a Notice of Effectiveness or any notice of effectiveness or any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time;
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Notwithstanding the foregoing, if at any time or from time to time after the date of effectiveness of the Registration Statement, the Company notifies the Investors in writing that the effectiveness of the Registration Statement is suspended for any reason, whether due to a Potential Material Event or otherwise, the Investors shall not offer or sell any Registrable Securities, or engage in any other transaction involving or relating to the Registrable Securities, from the time of the giving of such notice until such Investor receives written notice from the Company that such the effectiveness of the Registration Statement has been restored, whether because the Potential Material Event has been disclosed to the public or it no longer constitutes a Potential Material Event or otherwise; provided, however, that the Company may not so suspend the right to such holders of Registrable Securities during the periods the Registration Statement is required to be in effect other than during a Permitted Suspension Period (and the applicable provisions of Section 2(b) shall apply with respect to any such suspension other than during a Permitted Suspension Period);
(j) Use its reasonable efforts to secure and maintain the designation designation, if and to the extent required or contemplated by the rules or regulations of the Principal Trading Market, of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market within the meaning of Rule 11Aa2-1 of the SEC under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the quotation of the Registrable Securities on the Principal Trading Market;
(jk) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(kl) Cooperate with the Investor Investors who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor Investors may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such Registration Statement) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including Securities(including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable lawlaw and other rules and regulations, including, without limitation, prospectus delivery requirements; and
(lm) Take all other reasonable administrative steps and actions (including the participation of Company counsel) necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement; provided, however, that the foregoing does not require that the Company take any steps whatsoever regarding the identification or selection of a broker to sell the Registrable Securities, the identification of buyers of the Registrable Securities, or the negotiation of the sale terms of the Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Satellite Enterprises Corp)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(a) Prepare promptly, Promptly (i) prepare and file with the SEC by Commission such amendments to the Required Filing Date, a Registration Statement with respect and supplements to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts Prospectus as may be necessary to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement continuously effective at all times, other than during Permitted Suspension Periods, during and in compliance with the provisions of the Securities Act applicable thereto so as to permit the Prospectus forming part thereof to be current and useable by Holder for resale of the Registrable Securities for a period of two (2) years from the date on which the Registration Statement is first declared effective by the Commission ("Registration PeriodEFFECTIVE TIME") continuing until or such shorter period that will terminate when all the earlier of (i) the date when the Investor may sell all Registrable Securities under covered by the Registration Statement have been sold pursuant thereto in accordance with the plan of distribution provided in the Prospectus, transferred pursuant to Rule 144 without volume under the Securities Act or other otherwise transferred in a manner that results in the delivery of new securities not subject to transfer restrictions or limits or under the Securities Act ("REGISTRATION PERIOD") and (ii) take all lawful action such that each of (A) the date Registration Statement and any amendment thereto does not, when it becomes effective, 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 Investor no longer own any statements therein, not misleading and (B) the Prospectus forming part of the Registrable SecuritiesRegistration Statement, which and any amendment or supplement thereto, does not at any time during the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any Period 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, in light of the circumstances in under which they were made, not misleading;
(bi) Prepare and file Prior to the filing with the SEC such amendments Commission of any Registration Statement (including post-effective amendmentsany amendments thereto) and the distribution or delivery of any Prospectus (including any supplements thereto), provide draft copies thereof to Holder and reflect in such documents all such comments as Holder (and its counsel) reasonably may propose and (ii) furnish to Holder whose Registrable Securities are included in the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during the Registration Period, comply with the provisions of the Securities Act with respect its legal counsel identified to the disposition of all Registrable Securities covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
Company, (c) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (iA) promptly after the same is prepared and publicly distributed, filed with the SECCommission, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectusProspectus, and each amendment or supplement thereto, thereto and (iiB) such number of copies of a prospectus, the Prospectus and all amendments and supplements thereto and such other documents, as the Investor Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the InvestorHolder;
(fi) Register or qualify the Registrable Securities covered by the Registration Statement under such securities or "blue sky" laws of such jurisdictions as Holder reasonably requests, (ii) prepare and file in such jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take all such other lawful actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period and (iv) take all such other lawful actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions.
(d) As promptly as practicable after becoming aware thereofof such event, notify the Investor Holder of the happening occurrence of any event of which the Company has knowledgeevent, as a result of which the prospectus Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts and promptly to prepare a supplement or an amendment to the Registration Statement or other appropriate filing with and supplement to the SEC Prospectus to correct such untrue statement or omission, and deliver a number of copies of such supplement or and amendment to the Investor as the Investor Holder may reasonably request;
(ge) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination As promptly as practicable after becoming aware of information regarding the Companysuch event, and in furtherance notify Holder of the foregoingissuance by the Commission of any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time and take all lawful action to effect the withdrawal, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Companyrecession or removal of such stop order or other suspension;
(if) Use its reasonable efforts to secure and maintain the designation of Cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Market and the principal national securities exchange or included in an inter-dealer quotation system of a registered national securities association, on or in which securities of the Registrable Securities on same class or series issued by the Principal Trading MarketCompany are then listed or included;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(kg) Cooperate with the Investor Holder who holds Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement registration statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investor Holder reasonably may reasonably request and registered in such names as Holder may request, ; and, within five three (53) business days after a Registration Statement registration statement which includes Registrable Securities is ordered declared effective by the SECCommission, the Company shall deliver, deliver and shall cause legal counsel selected by the Company to deliver, deliver to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such registration statement) an appropriate instruction and and, to the extent necessary, an opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and;
(lh) Take all such other reasonable lawful actions reasonably necessary to expedite and facilitate the disposition by the Investor Holder of the its Registrable Securities in accordance with the intended methods therefor provided in the Prospectus which are customary under the circumstances; and
(i) Make reasonably available for inspection by Holder, any underwriter participating in any disposition pursuant to the Registration Statement, and any attorney, accountant or other agent retained by such Investors or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and (ii) cause the Company's officers, directors and employees to supply all information reasonably requested by Holder or any such underwriter, attorney, accountant or agent in connection with the Registration Statement, in each case, as is customary for similar due diligence examinations; PROVIDED, HOWEVER, that all records, information and documents that are designated in writing by the Company, in good faith, as confidential, proprietary or containing any material nonpublic information shall be kept confidential by such Investors and any such underwriter, attorney, accountant or agent (pursuant to an appropriate confidentiality agreement in the case of any such holder or agent), unless such disclosure is made pursuant to judicial process in a court proceeding (after first giving the Company an opportunity promptly to seek a protective order or otherwise limit the scope of the information sought to be disclosed) or is required by law, or such records, information or documents become available to the public generally or through a third party not in violation of an accompanying obligation of confidentiality; and PROVIDED, FURTHER, that, if the foregoing inspection and information gathering would otherwise disrupt the Company's conduct of its business, such inspection and information gathering shall, to the maximum extent possible, be coordinated on behalf of the Investors and the other parties entitled thereto by one firm of counsel designed by and on behalf of the majority in interest of Investors and other parties.
Appears in 1 contract
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(a) Prepare promptly, Promptly (i) prepare and file with the SEC by Commission such amendments to the Required Filing Date, a Registration Statement with respect and supplements to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts Prospectus as may be necessary to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement continuously effective at all times, other than during Permitted Suspension Periods, during and in compliance with the provisions of the Securities Act applicable thereto so as to permit the Prospectus forming part thereof to be current and useable by Holder for resale of the Registrable Securities for a period of five (5) years from the date on which the Registration Statement is first declared effective by the Commission (the "“Effective Time”) or such shorter period that will terminate when all the Registrable Securities covered by the Registration Statement have been sold pursuant thereto in accordance with the plan of distribution provided in the Prospectus, transferred pursuant to Rule 144 under the Securities Act or otherwise transferred in a manner that results in the delivery of new securities not subject to transfer restrictions under the Securities Act (the “Registration Period"”) continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or and (ii) take all lawful action such that each of (A) the date Registration Statement and any amendment thereto does not, when it becomes effective, 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 Investor no longer own any statements therein, not misleading and (B) the Prospectus forming part of the Registrable SecuritiesRegistration Statement, which and any amendment or supplement thereto, does not at any time during the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any Period 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, in light of the circumstances in under which they were made, not misleading;
(bi) Prepare and file Prior to the filing with the SEC such amendments Commission of any Registration Statement (including post-effective amendmentsany amendments thereto) and the distribution or delivery of any Prospectus (including any supplements thereto), provide draft copies thereof to Holder and reflect in such documents all such comments as Holder (and its counsel) reasonably may propose and (ii) furnish to Holder whose Registrable Securities are included in the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during the Registration Period, comply with the provisions of the Securities Act with respect its legal counsel identified to the disposition of all Registrable Securities covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
Company, (c) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (iA) promptly after the same is prepared and publicly distributed, filed with the SECCommission, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectusProspectus, and each amendment or supplement thereto, thereto and (iiB) such number of copies of a prospectus, the Prospectus and all amendments and supplements thereto and such other documents, as the Investor Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the InvestorHolder;
(fi) Register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions as Holder reasonably requests, (ii) prepare and file in such jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take all such other lawful actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period and (iv) take all such other JB Initials 7 TWH Initials lawful actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions.
(d) As promptly as practicable after becoming aware thereofof such event, notify the Investor Holder of the happening occurrence of any event of which the Company has knowledgeevent, as a result of which the prospectus Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts and promptly to prepare a supplement or an amendment to the Registration Statement or other appropriate filing with and supplement to the SEC Prospectus to correct such untrue statement or omission, and deliver a number of copies of such supplement or and amendment to the Investor as the Investor Holder may reasonably request;
(ge) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination As promptly as practicable after becoming aware of information regarding the Companysuch event, and in furtherance notify Holder of the foregoingissuance by the Commission of any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time and take all lawful action to effect the withdrawal, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Companyrecession or removal of such stop order or other suspension;
(if) Use its reasonable efforts to secure and maintain the designation of Cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Market principal national securities exchange, and the included in an inter-dealer quotation system of a registered national securities association, on or in which securities of the Registrable Securities on same class or series issued by the Principal Trading MarketCompany are then listed or included;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(kg) Cooperate with the Investor Holder who holds Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement registration statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investor Holder reasonably may reasonably request and registered in such names as Holder may request, ; and, within five three (53) business days after a Registration Statement registration statement which includes Registrable Securities is ordered declared effective by the SECCommission, the Company shall deliver, deliver and shall cause legal counsel selected by the Company to deliver, deliver to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such registration statement) an appropriate instruction and and, to the extent necessary, an opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and;
(lh) Take all such other reasonable lawful actions reasonably necessary to expedite and facilitate the disposition by the Investor Holder of the its Registrable Securities in accordance with the intended methods therefor provided in the Prospectus which are customary under the circumstances; and
(i) Make reasonably available for inspection by Holder, any underwriter participating in any disposition pursuant to the Registration Statement, and any attorney, accountant or other agent retained by such Investors or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and (ii) cause the Company’s officers, directors and employees to supply all information reasonably requested by Holder or any such underwriter, attorney, accountant or agent in connection with the Registration Statement, in each case, as is customary for similar due diligence examinations; provided, however, that all records, information and documents that are designated in writing by the Company, in good faith, as confidential, proprietary or containing any material nonpublic information shall be kept confidential by such Investors and any such JB Initials 8 TWH Initials underwriter, attorney, accountant or agent (pursuant to an appropriate confidentiality agreement in the case of any such holder or agent), unless such disclosure is made pursuant to judicial process in a court proceeding (after first giving the Company an opportunity promptly to seek a protective order or otherwise limit the scope of the information sought to be disclosed) or is required by law, or such records, information or documents become available to the public generally or through a third party not in violation of an accompanying obligation of confidentiality; and provided, further, that, if the foregoing inspection and information gathering would otherwise disrupt the Company’s conduct of its business, such inspection and information gathering shall, to the maximum extent possible, be coordinated on behalf of the Investors and the other parties entitled thereto by one firm of counsel designed by and on behalf of the majority in interest of Investors and other parties.
Appears in 1 contract
Samples: Warrant to Purchase Common Stock (S3 Investment Company, Inc.)
Obligations of the Company. In connection with the registration of the Registrable Securities, the The Company shall do each of the followingshall:
(a) Prepare promptlyprepare and file with the SEC, within 30 days after the Closing Date (as defined in the Series A Agreement), a Shelf Registration Statement to enable the resale of the Registrable Securities by each Holder from time to time in accordance with the methods of distribution elected by such Holder of the Registrable Securities and set forth in such Shelf Registration Statement and shall use its best efforts to cause such Shelf Registration Statement to be declared effective under the Act prior to 60 days following the filing of such Shelf Registration Statement with the SEC;
(b) prepare and file with the SEC, within 30 days after receipt of a written request from a Holder of Registrable Securities, a Shelf Registration Statement to enable the resale by the Holder of any Registrable Securities which were not included in the Shelf Registration Statement filed pursuant to paragraph (a), from time to time in accordance with the methods of distribution elected by any Holder of the Registrable Securities and set forth in such Shelf Registration Statement and shall use its best efforts to cause such Shelf Registration Statement to be declared effective under the Act prior to 30 days following the filing of such Shelf Registration Statement with the SEC;
(c) prepare and file with the SEC such amendments and supplements to any Shelf Registration Statement as may be necessary to comply with the provisions of the Act, the 1934 Act or the SEC;
(d) keep each Shelf Registration Statement continuously effective under the Act in order to permit the prospectus related thereof to be usable by the Required Filing DateHolders until, as to a particular Shelf Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) aboveStatement, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell as of which all Registrable Securities under covered by such Shelf Registration Statement may be transferred pursuant to Rule 144 without volume 144(k) of the Act (or other restrictions or limits any similar provision then in force), or (ii) such date as of which all Registrable Securities have been sold pursuant to the date the Investor no longer own any of the Registrable Securities, which Shelf Registration Statement (including in any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of such case, such period being called a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading"Shelf Registration Period");
(be) Prepare prepare and file with the SEC such amendments (including and post-effective amendments) and supplements amendments to the Registration Statement and the prospectus used in connection with the any Shelf Registration Statement as may be necessary to keep the any such Shelf Registration Statement continuously effective at all times during for the Registration Period (except during Permitted Suspension Periods), and, during the applicable Shelf Registration Period;
(f) cause the prospectus related to any Shelf Registration Statement to be supplemented by any required supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Act;
(g) comply in all material respects with the provisions of the Securities Act with respect to the disposition of all Registrable Securities securities covered by the each Shelf Registration Statement until such time as all of such Registrable Securities have been disposed of during the applicable period in accordance with the intended methods of disposition by the seller or sellers thereof as each Holder set forth in the relevant Shelf Registration StatementStatement as so amended or as such prospectus is so supplemented;
(ch) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed furnish to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive each Holder such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number numbers of copies of a prospectusthe prospectuses, and all amendments and supplements thereto including preliminary prospectuses, in conformity with the requirements of the Act, and such other documents, documents as the Investor such Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Investorsuch Holder;
(fi) As use its best efforts to register and qualify the securities covered by each Shelf Registration Statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably requested by a Holder; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions, unless the Company is already subject to service in such jurisdiction and except as may be required by the Act;
(j) in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter of such offering;
(k) advise each Holder, promptly as practicable after becoming aware thereof, it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of any Shelf Registration Statement or of the initiation or threat of any proceeding for that purpose; and it will promptly use its reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued;
(l) notify the Investor each Holder of the happening of any event of which the Company has knowledge, as a result of which the a prospectus included in the any Shelf Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, statement therein not misleading in the light of the circumstances under which they were made, not misleading, then existing and, subject following such notification, promptly deliver to Section 4(ceach Holder copies of all amendments or supplements referred to in paragraphs (c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, (e) and deliver a number (f) of copies of such supplement or amendment to the Investor as the Investor may reasonably requestthis Section 1.2;
(gm) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding cause all Registrable Securities registered pursuant to Article 1 hereunder to be listed on the dissemination of information regarding the Company, and in furtherance Automated Quotation System of the foregoing, National Association of Securities Dealers and not in limitation thereof, not disclose to on any securities exchange on which similar securities issued by the Investor any non-public material information regarding the CompanyCompany are then listed;
(in) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(j) Provide provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, registrar for the all Registrable Securities registered pursuant to Article 1 hereunder and a CUSIP number for all such Registrable Securities, in each case not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion date of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirementsregistration; and
(lo) Take all other reasonable actions necessary furnish, at the request of any Holder, on the date that any Registrable Securities are delivered to expedite and facilitate disposition by the Investor underwriters for sale in connection with a registration pursuant to this Article 1, if such securities are being sold through underwriters, or, if such securities are not being sold through underwriters, on the date that the Shelf Registration Statement with respect to such securities becomes effective, (i) an opinion, dated such date, of the Registrable Securities pursuant counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the Registration Statementunderwriters, if any, and to the Holders and (ii) a letter dated such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to the Holders.
Appears in 1 contract
Samples: Investor Rights Agreement (Breakaway Solutions Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptly, and file with the SEC by the Required Filing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, times during the period (the "Registration Period") continuing until the earlier earliest of (i) the date that is two (2) years after the last day of the calendar month following the month in which the Effective Date occurs, (ii) the date when the Investor Investors may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits limits, or (iiiii) the date the Investor Investors no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in under which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Notify each Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such personPerson) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (Di) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;.
(ed) Furnish to the each Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(fe) As promptly as practicable after becoming aware thereof, notify the each Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;
(f) As promptly as practicable after becoming aware thereof, notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of a Notice of Effectiveness or any notice of effectiveness or any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time;
(g) [intentionally omitted ]Notwithstanding the foregoing, if at any time or from time to time after the date of effectiveness of the Registration Statement, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3(e) or 3(f) above, the Investors shall not offer or sell any Registrable Securities, or engage in any other transaction involving or relating to the Registrable Securities, from the time of the giving of such notice until such Investor receives written notice from the Company that such notice is no longer in effect;
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation quotation and trading of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market its common stock, and the quotation of the Registrable Securities on the Principal Trading MarketOTCBB; and, without limiting the generality of the foregoing, to arrange for at least two market makers to register with the National Association of Securities Dealers, Inc. as such with respect to such Registrable Securities;
(ji) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(kj) Cooperate with the Investor Investors to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor Investors may reasonably request, and, within five three (53) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such Registration Statement) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(lk) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement.
Appears in 1 contract
Samples: Private Equity Credit Agreement (Execute Sports Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(a) Prepare promptly, and file with the SEC by the Required Filing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such the Registration Statement relating required to Registrable Securities be filed pursuant to Section 1(a) hereof to become effective by the Required Effective Date as soon as practicable and to keep the Registration Statement effective pursuant to Rule 415 and available for use at all times, other than during Permitted Suspension Periods, times during the period commencing upon such effectiveness and ending on the first anniversary of the Closing Date or such shorter period which will terminate when all Registrable Securities covered by the Registration Statement have been sold or withdrawn (but not prior to expiration of the ninety (90) day period referred to in Section 4(3) of the Securities Act and Rule 174 thereunder (or any successor or replacement rule) if applicable) (the "Registration Period") continuing until the earlier of (i) the date when ). The Company represents and warrants to, and covenants and agrees with, the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (ii) that the date the Investor no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein), at the time it is first filed with the SEC, at the time it is ordered effective by the SEC and at all times during which it is required to be effective hereunder (and each such amendment and supplement at the time it is filed with the SEC and at all times during which it is available for use in connection with the offer and sale of the Registrable Securities) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the such Registration Statement effective and available for use at all times during the Registration Period (except during Permitted Suspension Periods), and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, SEC or received by the Company, one (1) copy of the Registration StatementStatement and any amendment thereto, each preliminary prospectus and prospectus, prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC and each item of written correspondence from the SEC or the staff of the SEC relating to such Registration Statement (other than any portion of any thereof that contains information for which the Company has sought confidential treatment) and (ii) such number of copies of a the prospectus, including the preliminary prospectus, and all amendments and supplements thereto and such other documents, as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Investor;
(fd) As use reasonable efforts to (i) register and qualify the Registrable Securities covered by the Registration Statement under such securities or blue sky laws of such jurisdictions as any Investor reasonably requests, (ii) prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto (i) to qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 2(d), (ii) to subject itself to general taxation in any such jurisdiction, (iii) to file a general consent to service of process in any such jurisdiction, (iv) to provide any undertakings that cause more than nominal expense or burden to the Company or (v) to make any change in its articles of incorporation or by-laws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its shareholders;
(e) except as provided in this Section 2(e) as promptly as practicable after becoming aware thereofof such event or circumstance, notify the Investor of the happening (by telephone and by facsimile) of any event or circumstance of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly (but not later than five (5) days thereafter) to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, file such supplement or amendment with the SEC at such time as shall permit the Investor to sell Registrable Securities as promptly as practicable, and deliver a number of copies of such supplement or amendment to the Investor as the such Investor may reasonably request. If, the Board of Directors (i) is advised by counsel that public disclosure of any such event would not be required under applicable securities laws but for the requirement to include such disclosure in the Registration Statement and (ii) concludes in good faith that such disclosure is contrary to the best interest of the Company, it shall inform the Investor of such conclusion (without disclosing the specific nature of the event.) In any such case, as soon as the above described conditions shall no longer apply, the Company shall so inform the Investor and shall promptly file such amendments or supplements to the Registration Statement or make such other filings with the SEC as may be required to cause the misstatement or omission to be corrected. Nothing in this Section 2(e) shall be construed to require the Company to make any disclosure that would require concurrent or prompt public disclosure under Regulation FD if the Board of Directors concludes in good faith that such disclosure is not otherwise required by law and would not be in the best interest of the Company.
(f) as promptly as practicable after becoming aware of such event, notify the Investor of the issuance by the SEC of any stop order or other suspension of effectiveness of the Registration Statement at the earliest possible time, and the Company shall use its best efforts to prevent the issuance of any such stop order or other suspension;
(g) [intentionally omitted ]provide the Investor a copy of the Registration Statement and all amendments and supplements thereto at least five (5) business days prior to the filing thereof with the SEC, provided, that any failure or delay by the Investor in submitting comments to the Company during such period shall not require the Company to delay its filing of the Registration Statement or any such amendments or supplements; and the Company shall provide all correspondence of the Company to and from the SEC staff regarding the Registration Statement to the Investor upon written request of the Investor;
(h) Comply with Regulation FD make available for inspection by the Investor and its counsel or other agents retained by the Investor (collectively, the "Inspectors"), all pertinent financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records"), as shall be reasonably necessary to enable the Investor to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information that any Inspector reasonably may request for purposes of such due diligence; provided, however, that each Inspector shall hold in confidence and shall not make any disclosure (except to the Investor) of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement, (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court or government body of competent jurisdiction or (iii) the information in such Records has been made generally available to the public other than by disclosure in violation of this or any similar rule other agreement. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 2(h). The Investor agrees that it shall, upon learning that disclosure of such Records is sought in or regulation regarding by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the dissemination of information regarding Company and allow the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding at the Company's own expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidential;
(i) Use use its reasonable best efforts to secure and maintain the designation of cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Market and the quotation TSE, AMEX or such other principal securities exchange or market on which securities of the Registrable Securities on same class or series issued by the Principal Trading MarketCompany are then listed or traded;
(j) Provide hold in confidence and not make any disclosure of any information provided by the Investor to the Company and designated by the Investor as its confidential information, unless (i) the disclosure of such information is necessary to avoid or correct a transfer agent misstatement or omission in any Registration Statement, ("Transfer Agent"ii) and registrar, which may be the release of such information is ordered pursuant to a single entity, for subpoena or other order from a court or government body of competent jurisdiction or (iii) the Registrable Securities not later information has been made generally available to the public other than the initial Effective Dateby disclosure in violation of this agreement;
(k) Cooperate take all other actions necessary to comply with federal and any applicable state securities laws in connection with the Investor to facilitate the timely preparation and delivery obligations of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirementsunder this Agreement; and
(l) Take take all other reasonable actions necessary to expedite and facilitate disposition by the Investor Investors of the Registrable Securities pursuant to the Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Golden Star Resources LTD)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptly, and file with the SEC by the Required Filing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, times during the period (the "Registration Period") continuing until the earlier of (i) the date when the Investor Investors may sell all Registrable Securities under Rule 144 144(k) without volume or other restrictions or limits or (ii) the date the Investor Investors no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses Prospectuses, as defined below, contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus Prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Initial Investor (which, until further notice, shall be deemed to be Xxxxxx Xxxxxxxx Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the each Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the InvestorInvestors); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor Investors shall have the opportunity to comment thereon;
(e) Furnish to the each Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus Prospectus and prospectusProspectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectusProspectus, and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(f) As promptly as practicable after becoming aware thereof, notify the each Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;
(g) [intentionally omitted ]As promptly as practicable after becoming aware thereof, notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of a notice of effectiveness or any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time;
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of Notwithstanding the foregoing, and if at any time or from time to time after the date of effectiveness of the Registration Statement, the Company notifies the Investors in writing of the existence of a Potential Material Event, the Investors shall not offer or sell any Registrable Securities, or engage in limitation thereof, not disclose any other transaction involving or relating to the Registrable Securities, from the time of the giving of notice with respect to a Potential Material Event until such Investor any non-receives written notice from the Company that such Potential Material Event either has been disclosed to the public material information regarding or no longer constitutes a Potential Material Event; provided, however, that the CompanyCompany shall, if lawful to do so, provide the Investor with at least two (2) business days' notice of the existence (but not the substance of) a Potential Material Event;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;.
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;.
(k) Cooperate with the Investor Investors who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor Investors may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such Registration Statement) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including Securities(including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement.
Appears in 1 contract
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptly, and file with the SEC by the Required Filing Date, Date a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date as promptly as possible and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, times during the period (the "Registration Period") continuing until the earlier earliest of (i) the date that is five (5) years after the last day of the calendar month following the month in which the Effective Date occurs, (ii) the date when the Investor Investors may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits 144, or (iiiii) the date the Investor Investors no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit The Company shall permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") Investors to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects. If such counsel objects, unless the Company reasonably determines that Required Filing Date shall be extended by the number of days from the date the Registration Statement was delivered to such document is required by law counsel to be so filedthe date such counsel no longer objects;
(d) Notify the Investor and the each Investor, such Investor's Counsel legal counsel identified to the Company (the "Investor's Counsel"), and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three five (35) business days prior to such filing) and (if requested by any such personPerson) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of relating to a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the InvestorInvestors); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings Proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 Proceeding for such purpose; and (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel Investors with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor Investors shall have the opportunity to comment thereon;
(e) Furnish to the each Investor and to such Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(f) As promptly as practicable after becoming aware thereof, notify the each Investor of the happening of any event of which the Company has actual knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;
(g) [intentionally omitted ]As promptly as practicable after becoming aware thereof, notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of a Notice of Effectiveness or any notice of effectiveness or any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time;
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of Notwithstanding the foregoing, and if at any time or from time to time after the date of effectiveness of the Registration Statement, the Company notifies the Investors in writing of the existence of a Potential Material Event, the Investors shall not offer or sell any Registrable Securities, or engage in limitation thereof, not disclose any other transaction involving or relating to the Registrable Securities, from the time of the giving of notice with respect to a Potential Material Event until such Investor receives written notice from the Company that such Potential Material Event either has been disclosed to the public or no longer constitutes a Potential Material Event; PROVIDED, HOWEVER, that the Company may not so suspend the right to such holders of Registrable Securities for more than two twenty (20) business day periods in the aggregate during any non12-public material information regarding month period ("Suspension Period") with at least a ten (10) business day interval between such periods, during the Companyperiods the Registration Statement is required to be in effect;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading NASDAQ/National Market System or the "OTC Bulletin Board Market" of the National Association of Securities Dealers Automated Quotations System ("NASDAQ") within the meaning of Rule 11Aa2-1 of the SEC under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the quotation of the Registrable Securities on The NASDAQ National Market System; and further use its efforts to arrange for at least two market makers to register with the Principal Trading MarketNational Association of Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securities;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than three (3) business days after the initial Effective Dateeffective date of the Registration Statement;
(k) Cooperate with the Investor Investors to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor Investors may reasonably request, and, within five three (53) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such Registration Statement) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and;
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement;
(m) Not take, or omit to take, any actions that would preclude the filing or effectiveness of the Registration Statement or require the withdrawal of the Registration Statement;
(n) Not complete any acquisitions or business combinations until the SEC has declared effective the registration statement that registers the shares of Common Stock underlying the Debentures.
Appears in 1 contract
Samples: Securities Purchase Agreement (Univercell Holdings Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptlyand file, and file with the SEC by the Required Filing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, times during the period (the "Registration Period") continuing until the earlier of (i) the date when the Investor Investors may sell all Registrable Securities under Rule 144 144(k) without volume or other restrictions or limits or limits, (ii) the date the Investor Investors no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, or (iii) one (1) year after the Effective Date of the Registration Statement;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor Investors (which, until further notice, shall be deemed to be Xxxxxxx Krieger & Xxxxxx Prager LLP, Attn: Xxxxxx XxxxxxxSamuel Krieger, Esq., which firm has requested to hax xxxxestxx xx receive such notificationxxxxxxxxxxxx; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto for a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments (as such comments relate to the Investor) shall be promptly furnished by the Company to the InvestorInvestors); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) that relate to Investors not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor Investors shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, all correspondence to, with, or from the SEC, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto (as contemplated in Section 3(d) above) and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(f) As promptly as practicable after becoming aware thereof, notify the each Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;
(g) [intentionally omitted ]As promptly as practicable after becoming aware thereof, notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of a Notice of Effectiveness or any notice of effectiveness or any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time;
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of Notwithstanding the foregoing, and if at any time or from time to time after the date of effectiveness of the Registration Statement, the Company notifies the Investors in writing of the existence of a Potential Material Event, the Investors shall not offer or sell any Registrable Securities, or engage in limitation thereof, not disclose any other transaction involving or relating to the Registrable Securities, from the time of the giving of notice with respect to a Potential Material Event until such Investor receives written notice from the Company that such Potential Material Event either has been disclosed to the public or no longer constitutes a Potential Material Event; provided, however, that the Company may not so suspend the right to such holders of Registrable Securities during the periods the Registration Statement is required to be in effect other than during a Permitted Suspension Period (and the applicable provisions of Section 2(b) shall apply with respect to any non-public material information regarding the Company;
such suspension other than during a Permitted Suspension Period) . The term "Permitted Suspension Period" means up to two such suspension periods, each of which suspension period shall not either (i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
be for more than fifteen (j15) Provide a transfer agent business days or ("Transfer Agent"ii) and registrar, which may be a single entity, for the Registrable Securities not later begin less than the initial Effective Date;
ten (k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (510) business days after the last day of the preceding suspension (whether or not such last day was during or after a Registration Statement which includes Registrable Securities is ordered effective Permitted Suspension Period); provided further that the Company shall, if lawful to do so, provide the Investor with at least two (2) business days' notice of the existence (but not the substance of) a Potential Material Event. Investor shall treat any information with respect to Potential Material Event as confidential. The Investor shall indemnify and hold harmless the Company, its employees, officers, directors, agents, and partners, and their respective Affiliates, from and against all claims, losses, damages, costs (including the costs of preparation and attorney's fees) and expenses suffered regarding any trades by the SECInvestor, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investorits affiliates or any person(s) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by acquiring information from the Investor of the Registrable Securities pursuant to the Registration Statementas a tippee or otherwise.
Appears in 1 contract
Samples: Registration Rights Agreement (Focus Enhancements Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(a) Prepare promptly, Promptly (i) prepare and file with the SEC by Commission such amendments (including post-effective amendments) to the Required Filing Date, a Registration Statement with respect and supplements to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts Prospectus as may be necessary to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement continuously effective at all times, other than during Permitted Suspension Periods, during and in compliance with the provisions of the Securities Act applicable thereto so as to permit the Prospectus forming part thereof to be current and useable by Investors for resales of the Registrable Securities for a period of two years from the date on which the Registration Statement is first declared effective by the Commission (the "EFFECTIVE TIME") or such shorter period that will terminate when all the Registrable Securities covered by the Registration Statement have been sold pursuant thereto in accordance with the plan of distribution provided in the Prospectus, transferred pursuant to Rule 144 under the Securities Act or otherwise transferred in a manner that results in the delivery of new securities not subject to transfer restrictions under the Securities Act (the "REGISTRATION Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or and (ii) take all lawful action such that each of (A) the date Registration Statement and any amendment thereto does not, when it becomes effective, 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 Investor no longer own any statements therein, not misleading and (B) the Prospectus forming part of the Registrable SecuritiesRegistration Statement, which and any amendment or supplement thereto, does not at any time during the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any Period 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, in light of the circumstances in under which they were made, not misleading. Notwithstanding the foregoing provisions of this Section 3(a), any Series B Investor, Series C Investor, Series D Investor or Series E Investor may, by written notice to the Company and each Investor during the Registration Period, require the Company to suspend the use of the Prospectus for a period not to exceed 90 days (whether or not consecutive) in any 12-month period, and if so notified the Company shall suspend the use of the Prospectus as required by such Series B Investor, Series C Investor, Series D Investor or Series E Investor. At the end of any such suspension period, the Company shall provide the Investors with written notice of the termination of such suspension;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during During the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Investors as set forth in the Prospectus forming part of the Registration Statement;
(ci) Permit Prior to the filing with the Commission of any Registration Statement (including any amendments thereto) and the distribution or delivery of any Prospectus (including any supplements thereto), provide (A) draft copies thereof to the Investors and reflect in such documents all such comments as the Investors (and their counsel) reasonably may propose and (B) to the Investors a single firm copy of counsel designated by the Investor (which, until further notice, shall be deemed accountant's consent letter to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested included in the filing and (ii) furnish to receive such notification; each, an "Investor's Counsel") to review each Investor whose Registrable Securities are included in the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such its legal counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment identified to the Registration Statement is proposed to be filed; Company, (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (iA) promptly after the same is prepared and publicly distributed, filed with the SECCommission, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectusProspectus, and each amendment or supplement thereto, and (iiB) such number of copies of a prospectus, the Prospectus and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(fi) Register or qualify the Registrable Securities covered by the Registration Statement under such securities or "blue sky" laws of such jurisdictions as the Investors who hold a majority-in-interest of the Registrable Securities being offered reasonably request, (ii) prepare and file in such jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take all such other lawful actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all such other lawful actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (B) subject itself to general taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(e) As promptly as practicable after becoming aware thereofof such event, notify the each Investor of the happening occurrence of any event of which the Company has knowledgeevent, as a result of which the prospectus Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts and promptly to prepare a supplement or an amendment to the Registration Statement or other appropriate filing with and supplement to the SEC Prospectus to correct such untrue statement or omission, and deliver a number of copies of such supplement or and amendment to the each Investor as the such Investor may reasonably request;
(gf) [intentionally omitted ]
As promptly as practicable after becoming aware of such event, notify each Investor who holds Registrable Securities being sold (hor, in the event of an underwritten offering, the managing underwriters) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoingissuance by the Commission of any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time and take all lawful action to effect the withdrawal, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Companyrecession or removal of such stop order or other suspension;
(ig) Use its reasonable efforts to secure and maintain the designation of Cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Market principal national securities exchange, and the included in an inter-dealer quotation system of a registered national securities association, on or in which securities of the Registrable Securities on same class or series issued by the Principal Trading MarketCompany are then listed or included;
(jh) Provide Maintain a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(ki) Cooperate with the Investor Investors who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement registration statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investors reasonably may request and registered in such names as the Investor may reasonably request, ; and, within five (5) three business days after a Registration Statement registration statement which includes Registrable Securities is ordered declared effective by the SECCommission, the Company shall deliver, deliver and shall cause legal counsel selected by the Company to deliver, deliver to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such registration statement) an appropriate instruction and and, to the extent necessary, an opinion of such counsel;
(j) Take all such other lawful actions reasonably necessary to expedite and facilitate the disposition by the Investors of their Registrable Securities in accordance with the intended methods therefor provided in the Prospectus which are customary under the circumstances;
(k) Make generally available to its security holders as soon as practicable, but in any event not later than three (3) months after (i) the effective date (as defined in Rule 158(c) under the Securities Act) of the Registration Statement, and (ii) the effective date of each post-effective amendment to the Registration Statement, as the case may be, an earnings statement of the Company and its subsidiaries complying with Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(l) In the event of an underwritten offering, promptly include or incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the managers reasonably agree should be included therein and to which the Company does not reasonably object and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after it is notified of the matters to be included or incorporated in such Prospectus supplement or post-effective amendment;
(i) Make reasonably available for inspection by Investors, any underwriter participating in any disposition pursuant to the Registration Statement, and any attorney, accountant or other agent retained by such Investors or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and (ii) cause the Company's officers, directors and employees to supply all information reasonably requested by such Investors or any such underwriter, attorney, accountant or agent in connection with the Registration Statement, in each case, as is customary for similar due diligence examinations; provided, however, that all records, information and documents that are designated in writing by the Company, in good faith, as confidential, proprietary or containing any material nonpublic information shall be kept confidential by such Investors and any such underwriter, attorney, accountant or agent (pursuant to an appropriate confidentiality agreement in the case of any such holder or agent), unless such disclosure is made pursuant to judicial process in a court proceeding (after first giving the Company an opportunity promptly to seek a protective order or otherwise limit the scope of the information sought to be disclosed) or is required by law, or such records, information or documents become available to the public generally or through a third party not in violation of an accompanying obligation of confidentiality; and provided, further, that, if the foregoing inspection and information gathering would otherwise disrupt the Company's conduct of its business, such inspection and information gathering shall, to the maximum extent possible, be coordinated on behalf of the Investors and the other parties entitled thereto by one firm of counsel designed by and on behalf of the majority in interest of Investors and other parties;
(n) In connection with any underwritten offering, make such representations and warranties to the Investors participating in such underwritten offering and to the managers, in form, substance and scope as are customarily made by the Company to underwriters in secondary underwritten offerings;
(o) In connection with any underwritten offering, obtain opinions of counsel to the Company (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managers) addressed to the underwriters, covering such matters as are customarily covered in opinions requested in secondary underwritten offerings (it being agreed that the matters to be covered by such opinions shall include, without limitation, directions to as of the Transfer Agent to issue certificates date of Registrable Securities (the opinion and as of the Effective Time of the Registration Statement or most recent post-effective amendment thereto, as the case may be, the absence from the Registration Statement and the Prospectus, including certificates for Registrable Securities any documents incorporated by reference therein, of an untrue statement of a material fact or the omission of a material fact required to be issued after stated therein or necessary to make the Effective Date and replacement certificates for Registrable Securities previously issuedstatements therein (in the case of the Prospectus, in light of the circumstances under which they were made) without legends or other restrictionsnot misleading, subject to compliance customary limitations);
(p) In connection with applicable lawany underwritten offering, obtain "cold comfort" letters and updates thereof from the independent public accountants of the Company (and, if necessary, from the independent public accountants of any subsidiary of the Company or of any business acquired by the Company, in each case for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each underwriter participating in such underwritten offering (if such underwriter has provided such letter, representations or documentation, if any, required for such cold comfort letter to be so addressed), in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with secondary underwritten offerings;
(q) In connection with any underwritten offering, deliver such documents and certificates as may be reasonably required by the managers, if any; and
(r) In the event that any broker-dealer registered under the Exchange Act shall be an "AFFILIATE" (as defined in Rule 2729(b)(1) of the rules and regulations of the National Association of Securities Dealers, Inc. (the "NASD RULES") (or any successor provision thereto)) of the Company or has a "CONFLICT OF INTEREST" (as defined in Rule 2720(b)(7) of the NASD Rules (or any successor provision thereto)) and such broker-dealer shall underwrite, participate as a member of an underwriting syndicate or selling group or assist in the distribution of any Registrable Securities covered by the Registration Statement, whether as a holder of such Registrable Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company shall assist such broker-dealer in complying with the requirements of the NASD Rules, including, without limitation, prospectus delivery requirements; and
by (lA) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor engaging a "QUALIFIED INDEPENDENT UNDERWRITER" (as defined in Rule 2720(b)(15) of the NASD Rules (or any successor provision thereto)) to participate in the preparation of the Registration Statement relating to such Registrable Securities pursuant Securities, to exercise usual standards of due diligence in respect thereof and to recommend the public offering price of such Registrable Securities, (B) indemnifying such qualified independent underwriter to the Registration Statementextent of the indemnification of underwriters provided in Section 6 hereof, and (C) providing such information to such broker-dealer as may be required in order for such broker-dealer to comply with the requirements of the NASD Rules.
Appears in 1 contract
Samples: Registration Rights Agreement (Innovative Gaming Corp of America)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(a) Prepare promptly, Promptly (i) prepare and file with the SEC by Commission such amendments (including post-effective amendments) to the Required Filing Date, a Registration Statement with respect and supplements to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts Prospectus as may be necessary to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement continuously effective at and in compliance with the provisions of the Securities Act applicable thereto so as to permit the Prospectus forming part thereof to be current and useable by Investors for resales of the Registrable Securities for a period of two years from the date on which the Registration Statement is first declared effective by the Commission (the "Effective Time") or such shorter period that will terminate when all timesthe Registrable Securities covered by the Registration Statement have been sold pursuant thereto in accordance with the plan of distribution provided in the Prospectus, other than during Permitted Suspension Periods, during transferred pursuant to Rule 144 under the period Securities Act or otherwise transferred in a manner that results in the delivery of new securities not subject to transfer restrictions under the Securities Act (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or and (ii) take all lawful action such that each of (A) the date Registration Statement and any amendment thereto does not, when it becomes effective, 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 Investor no longer own any statements therein, not misleading and (B) the Prospectus forming part of the Registrable SecuritiesRegistration Statement, which and any amendment or supplement thereto, does not at any time during the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any Period 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, in light of the circumstances in under which they were made, not misleading;. Notwithstanding the foregoing provisions of this Section 3(a), the Company may, during the Registration Period, suspend the use of the Prospectus for a period not to exceed 60 days (whether or not consecutive) in any 12-month period if the Board of Directors of the Company determines in good faith that because of valid business reasons, including pending mergers or other business combination transactions, the planned acquisition or divestiture of assets, pending material corporate developments and similar events, it is in the best interests of the Company to suspend such use, and prior to or contemporaneously with suspending such use the Company provides the Investors with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. At the end of any such suspension period, the Company shall provide the Investors with written notice of the termination of such suspension.
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during During the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Investors as set forth in the Prospectus forming part of the Registration Statement;
(ci) Permit a single firm Prior to the filing with the Commission of counsel designated by any Registration Statement (including any amendments thereto) and the distribution or delivery of any Prospectus (including any supplements thereto), provide draft copies thereof to the Investors and reflect in such documents all such comments as the Investors (and their counsel) reasonably may propose and (ii) furnish to each Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review whose Registrable Securities are included in the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such its legal counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment identified to the Registration Statement is proposed to be filed; Company, (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (iA) promptly after the same is prepared and publicly distributed, filed with the SECCommission, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectusProspectus, and each amendment or supplement thereto, and (iiB) such number of copies of a prospectus, the Prospectus and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(fi) Register or qualify the Registrable Securities covered by the Registration Statement under such securities or "blue sky" laws of such jurisdictions as the Investors who hold a majority-in-interest of the Registrable Securities being offered reasonably request, (ii) prepare and file in such jurisdictions such amendments (including post- effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take all such other lawful actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all such other lawful actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d);
(e) As promptly as practicable after becoming aware thereofof such event, notify the each Investor of the happening occurrence of any event of which the Company has knowledgeevent, as a result of which the prospectus Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts and promptly to prepare a supplement or an amendment to the Registration Statement or other appropriate filing with and supplement to the SEC Prospectus to correct such untrue statement or omission, and deliver a number of copies of such supplement or and amendment to the each Investor as the such Investor may reasonably request;
(gf) [intentionally omitted ]
As promptly as practicable after becoming aware of such event, notify each Investor who holds Registrable Securities being sold (hor, in the event of an underwritten offering, the managing underwriters) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoingissuance by the Commission of any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time and take all lawful action to effect the withdrawal, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Companyrecession or removal of such stop order or other suspension;
(ig) Use its reasonable efforts to secure and maintain the designation of Cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Market principal national securities exchange, and the included in an inter-dealer quotation system of a registered national securities association, on or in which securities of the Registrable Securities on same class or series issued by the Principal Trading MarketCompany are then listed or included;
(jh) Provide Maintain a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(ki) Cooperate with the Investor Investors who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investors reasonably may request and registered in such names as the Investor may reasonably request, ; and, within five (5) three business days after a Registration Statement which includes Registrable Securities is ordered declared effective by the SECCommission, the Company shall deliver, deliver and shall cause legal counsel selected by the Company to deliver, deliver to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such Registration Statement) an appropriate instruction and and, to the extent necessary, an opinion of such counsel;
(j) Take all such other lawful actions reasonably necessary to expedite and facilitate the disposition by the Investors of their Registrable Securities in accordance with the intended methods therefor provided in the Prospectus which are customary under the circumstances;
(k) Make generally available to its security holders as soon as practicable, but in any event not later than three (3) months after (i) the effective date (as defined in Rule 158(c) under the Securities Act) of the Registration Statement, and (ii) the effective date of each post-effective amendment to the Registration Statement as the case may be, an earnings statement of the Company and its subsidiaries complying with Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(l) In the event of an underwritten offering, promptly include or incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the managers reasonably agree should be included therein and to which the Company does not reasonably object and make all required filings of such Prospectus supplement or post- effective amendment as soon as practicable after it is notified of the matters to be included or incorporated in such Prospectus supplement or post-effective amendment;
(i) Make reasonably available for inspection by Investors, any underwriter participating in any disposition pursuant to the Registration Statement, and any attorney, accountant or other agent retained by such Investors or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and (ii) cause the Company's officers, directors and employees to supply all information reasonably requested by such Investors or any such underwriter, attorney, accountant or agent in connection with the Registration Statement, in each case, as is customary for similar due diligence examinations; provided, however, that all records, information and documents that are designated in writing by the Company, in good faith, as confidential, proprietary or containing any material nonpublic information shall be kept confidential by such Investors and any such underwriter, attorney, accountant or agent (pursuant to an appropriate confidentiality agreement in the case of any such holder or agent), unless such disclosure is made pursuant to judicial process in a court proceeding (after first giving the Company an opportunity promptly to seek a protective order or otherwise limit the scope of the information sought to be disclosed) or is required by law, or such records, information or documents become available to the public generally or through a third party not in violation of an accompanying obligation of confidentiality; provided, however, that such records, information and documents shall be used by such person solely for the purpose of determining that disclosures made in the Registration Statement are true and correct, and for no other purpose; and provided further that, if the foregoing inspection and information gathering would otherwise disrupt the Company's conduct of its business, such inspection and information gathering shall, to the maximum extent possible, be coordinated on behalf of the Investors and the other parties entitled thereto by one firm of counsel designed by and on behalf of the majority in interest of Investors and other parties;
(n) In connection with any underwritten offering, make such representations and warranties to the Investors participating in such underwritten offering and to the managers, in form, substance and scope as are customarily made by the Company to underwriters in secondary underwritten offerings;
(o) In connection with any underwritten offering, obtain opinions of counsel to the Company (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managers) addressed to the underwriters, covering such matters as are customarily covered in opinions requested in secondary underwritten offerings (it being agreed that the matters to be covered by such opinions shall include, without limitation, directions to as of the Transfer Agent to issue certificates date of Registrable Securities (the opinion and as of the Effective Time of the Registration Statement or most recent post- effective amendment thereto, as the case may be, the absence from the Registration Statement and the Prospectus, including certificates for Registrable Securities any documents incorporated by reference therein, of an untrue statement of a material fact or the omission of a material fact required to be issued after stated therein or necessary to make the Effective Date and replacement certificates for Registrable Securities previously issuedstatements therein (in the case of the Prospectus, in light of the circumstances under which they were made) without legends or other restrictionsnot misleading, subject to compliance customary limitations); (p) In connection with applicable lawany underwritten offering, obtain "cold comfort" letters and updates thereof from the independent public accountants of the Company (and, if necessary, from the independent public accountants of any subsidiary of the Company or of any business acquired by the Company, in each case for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each underwriter participating in such underwritten offering (if such underwriter has provided such letter, representations or documentation, if any, required for such cold comfort letter to be so addressed), in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with secondary underwritten offerings;
(q) In connection with any underwritten offering, deliver such documents and certificates as may be reasonably required by the managers, if any; and
(r) In the event that any broker-dealer registered under the Exchange Act shall be an "Affiliate" (as defined in Rule 2729(b)(1) of the rules and regulations of the National Association of Securities Dealers, Inc. (the "NASD Rules") (or any successor provision thereto)) of the Company or has a "conflict of interest" (as defined in Rule 2720(b)(7) of the NASD Rules (or any successor provision thereto)) and such broker-dealer shall underwrite, participate as a member of an underwriting syndicate or selling group or assist in the distribution of any Registrable Securities covered by the Registration Statement, whether as a holder of such Registrable Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the.Company shall assist such broker-dealer in complyxxx xxxx xxe requirements of the NASD Rules, including, without limitation, prospectus delivery requirements; and
by (lA) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor engaging a "qualified independent underwriter" (as defined in Rule 2720(b)(15) of the NASD Rules (or any successor provision thereto)) to participate in the preparation of the Registration Statement relating to such Registrable Securities pursuant Securities, to exercise usual standards of due diligence in respect thereof and to recommend the public offering price of such Registrable Securities, (B) indemnifying such qualified independent underwriter to the Registration Statementextent of the indemnification of underwriters provided in Section 6(a) hereof, and (C) providing such information to such broker-dealer as may be required in order for such broker-dealer to comply with the requirements of the NASD Rules.
Appears in 1 contract
Samples: Registration Rights Agreement (Dynamicweb Enterprises Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(a) Prepare promptly, Promptly (i) prepare and file with the SEC by Commission such amendments (including post-effective amendments) to the Required Filing Date, a Registration Statement with respect and supplements to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts Prospectus as may be necessary to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement continuously effective at and in compliance with the provisions of the Securities Act applicable thereto so as to permit the Prospectus forming part thereof to be current and useable by Investors for resales of the Registrable Securities for a period of five years from the date on which the Registration Statement is first declared effective by the Commission (the "Effective Time") or such shorter period that will terminate when all timesthe Registrable Securities covered by the Registration Statement have been sold pursuant thereto in accordance with the plan of distribution provided in the Prospectus, other than during Permitted Suspension Periods, during transferred pursuant to Rule 144 under the period Securities Act or otherwise transferred in a manner that results in the delivery of new securities not subject to transfer restrictions under the Securities Act (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or and (ii) take all lawful action such that each of (A) the date Registration Statement and any amendment thereto does not, when it becomes effective, 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 Investor no longer own any statements therein, not misleading and (B) the Prospectus forming part of the Registrable SecuritiesRegistration Statement, which and any amendment or supplement thereto, does not at any time during the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any Period 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, in light of the circumstances in under which they were made, not misleading;.
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during During the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Investors as set forth in the Prospectus forming part of the Registration Statement;
(ci) Permit Prior to the filing with the Commission of any Registration Statement (including any amendments thereto) and the distribution or delivery of any Prospectus (including any supplements thereto), provide (A) draft copies thereof to the Investors and reflect in such documents all such comments as the Investors (and their counsel) reasonably may propose and (B) to the Investors a single firm copy of counsel designated by the Investor (which, until further notice, shall be deemed accountant's consent letter to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested included in the filing and (ii) furnish to receive such notification; each, an "Investor's Counsel") to review each Investor whose Registrable Securities are included in the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such its legal counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment identified to the Registration Statement is proposed to be filed; Company, (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (iA) promptly after the same is prepared and publicly distributed, filed with the SECCommission, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectusProspectus, and each amendment or supplement thereto, and (iiB) such number of copies of a prospectus, the Prospectus and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(fi) Register or qualify the Registrable Securities covered by the Registration Statement under such securities or "blue sky" laws of such jurisdictions as the Investors who hold a majority-in-interest of the Registrable Securities being offered reasonably request, (ii) prepare and file in such jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take all such other lawful actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all such other lawful actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (B) subject itself to general taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(e) As promptly as practicable after becoming aware thereofof such event, notify the each Investor of the happening occurrence of any event of which the Company has knowledgeevent, as a result of which the prospectus Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts and promptly to prepare a supplement or an amendment to the Registration Statement or other appropriate filing with and supplement to the SEC Prospectus to correct such untrue statement or omission, and deliver a number of copies of such supplement or and amendment to the each Investor as the such Investor may reasonably request;
(gf) [intentionally omitted ]
As promptly as practicable after becoming aware of such event, notify each Investor who holds Registrable Securities being sold (hor, in the event of an underwritten offering, the managing underwriters) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoingissuance by the Commission of any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time and take all lawful action to effect the withdrawal, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Companyrecession or removal of such stop order or other suspension;
(ig) Use its reasonable efforts to secure and maintain the designation of Cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Market principal national securities exchange, and the included in an inter-dealer quotation system of a registered national securities association, on or in which securities of the Registrable Securities on same class or series issued by the Principal Trading MarketCompany are then listed or included;
(jh) Provide Maintain a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(ki) Cooperate with the Investor Investors who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement registration statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investors reasonably may request and registered in such names as the Investor may reasonably request, ; and, within five (5) three business days after a Registration Statement registration statement which includes Registrable Securities is ordered declared effective by the SECCommission, the Company shall deliver, deliver and shall cause legal counsel selected by the Company to deliver, deliver to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such registration statement) an appropriate instruction and and, to the extent necessary, an opinion of such counsel;
(j) Take all such other lawful actions reasonably necessary to expedite and facilitate the disposition by the Investors of their Registrable Securities in accordance with the intended methods therefor provided in the Prospectus which are customary under the circumstances;
(k) Make generally available to its security holders as soon as practicable after (i) the effective date (as defined in Rule 158(c) under the Securities Act) of the Registration Statement, and (ii) the effective date of each post-effective amendment to the Registration Statement, as the case may be, an earnings statement of the Company and its subsidiaries complying with Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder;
(1) In the event of an underwritten offering, promptly include or incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the managers reasonably agree should be included therein and to which the Company does not reasonably object and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after it is notified of the matters to be included or incorporated in such Prospectus supplement or post-effective amendment;
(i) Make reasonably available for inspection by Investors, any underwriter participating in any disposition pursuant to the Registration Statement, and any attorney, accountant or other agent retained by such Investors or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and (ii) cause the Company's officers, directors and employees to supply all information reasonably requested by such Investors or any such underwriter, attorney, accountant or agent in connection with the Registration Statement, in each case, as is customary for similar due diligence examinations; provided, however, that all records, information and documents that are designated in writing by the Company, in good faith, as confidential, proprietary or containing any material nonpublic information shall be kept confidential by such Investors and any such underwriter, attorney, accountant or agent (pursuant to an appropriate confidentiality agreement in the case of any such holder or agent), unless such disclosure is made pursuant to judicial process in a court proceeding (after first giving the Company an opportunity promptly to seek a protective order or otherwise limit the scope of the information sought to be disclosed) or is required by law, or such records, information or documents become available to the public generally or through a third party not in violation of an accompanying obligation of confidentiality; and provided, further, that, if the foregoing inspection and information gathering would otherwise disrupt the Company's conduct of its business, such inspection and information gathering shall, to the maximum extent possible, be coordinated on behalf of the Investors and the other parties entitled thereto by one firm of counsel designed by and on behalf of the majority in interest of Investors and other parties;
(n) In connection with any underwritten offering, make such representations and warranties to the Investors participating in such underwritten offering and to the managers, in form, substance and scope as are customarily made by the Company to underwriters in secondary underwritten offerings;
(o) In connection with any underwritten offering, obtain opinions of counsel to the Company (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managers) addressed to the underwriters, covering such matters as are customarily covered in opinions requested in secondary underwritten offerings (it being agreed that the matters to be covered by such opinions shall include, without limitation, directions to as of the Transfer Agent to issue certificates date of Registrable Securities (the opinion and as of the Effective Time of the Registration Statement or most recent post-effective amendment thereto, as the case may be, the absence from the Registration Statement and the Prospectus, including certificates for Registrable Securities any documents incorporated by reference therein, of an untrue statement of a material fact or the omission of a material fact required to be issued after stated therein or necessary to make the Effective Date and replacement certificates for Registrable Securities previously issuedstatements therein (in the case of the Prospectus, in light of the circumstances under which they were made) without legends or other restrictionsnot misleading, subject to compliance customary limitations);
(p) In connection with applicable lawany underwritten offering, obtain "cold comfort" letters and updates thereof from the independent public accountants of the Company (and, if necessary, from the independent public accountants of any subsidiary of the Company or of any business acquired by the Company, in each case for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each underwriter participating in such underwritten offering (if such underwriter has provided such letter, representations or documentation, if any, required for such cold comfort letter to be so addressed), in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with secondary underwritten offerings;
(q) In connection with any underwritten offering, deliver such documents and certificates as may be reasonably required by the managers, if any; and
(r) In the event that any broker-dealer registered under the Exchange Act shall be an "Affiliate" (as defined in Rule 2729(b)(1) of the rules and regulations of the National Association of Securities Dealers, Inc. (the "NASD Rules") (or any successor provision thereto)) of the Company or has a "conflict of interest" (as defined in Rule 2720(b)(7) of the NASD Rules (or any successor provision thereto)) and such broker-dealer shall underwrite, participate as a member of an underwriting syndicate or selling group or assist in the distribution of any Registrable Securities covered by the Registration Statement, whether as a holder of such Registrable Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company shall assist such broker-dealer in complying with the requirements of the NASD Rules, including, without limitation, prospectus delivery requirements; and
by (lA) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor engaging a "qualified independent underwriter" (as defined in Rule 2720(b)(15) of the NASD Rules (or any successor provision thereto)) to participate in the preparation of the Registration Statement relating to such Registrable Securities pursuant Securities, to exercise usual standards of due diligence in respect thereof and to recommend the public offering price of such Registrable Securities, (B) indemnifying such qualified independent underwriter to the Registration Statementextent of the indemnification of underwriters provided in Section 5 hereof, and (C) providing such information to such broker-dealer as may be required in order for such broker-dealer to comply with the requirements of the NASD Rules.
Appears in 1 contract
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the followingshall:
(a) Prepare promptly, Promptly (i) prepare and file with the SEC by Commission such amendments (including post-effective amendments) to the Required Filing Date, a Registration Statement with respect and supplements to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts Prospectus as may be necessary to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement continuously effective at all times, other than during Permitted Suspension Periods, during and in compliance with the provisions of the Securities Act applicable thereto so as to permit the Prospectus forming part thereof to be current and useable by Investors for resales of the Registrable Securities for a period of five years from the date on which the Registration Statement is first declared effective by the Commission (the "Registration PeriodEFFECTIVE TIME") continuing until or such shorter period that will terminate when all the earlier of (i) the date when the Investor may sell all Registrable Securities under covered by the Registration Statement have been sold pursuant thereto in accordance with the plan of distribution provided in the Prospectus, transferred pursuant to Rule 144 without volume under the Securities Act or other otherwise transferred in a manner that results in the delivery of new securities not subject to transfer restrictions or limits or under the Securities Act (the "REGISTRATION PERIOD") and (ii) take all lawful action such that each of (A) the date Registration Statement and any amendment thereto does not, when it becomes effective, 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 Investor no longer own any statements therein, not misleading and (B) the Prospectus forming part of the Registrable SecuritiesRegistration Statement, which and any amendment or supplement thereto, does not at any time during the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any Period 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, in light of the circumstances in under which they were made, not misleading. Notwithstanding the foregoing provisions of this Section 3(a), the Company may, during the Registration Period, suspend the use of the Prospectus for a period not to exceed 60 days (whether or not consecutive) in any 12-month period if the Board of Directors of the Company determines in good faith that because of valid business reasons, including pending mergers or other business combination transactions, the planned acquisition or divestiture of assets, pending material corporate developments and similar events, it is in the best interests of the Company to suspend such use, and prior to or contemporaneously with suspending such use the Company provides the Investors with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. At the end of any such suspension period, the Company shall provide the Investors with written notice of the termination of such suspension;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during During the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof Investors as set forth in the Prospectus forming part of the Registration Statement;
(ci) Permit Prior to the filing with the Commission of any Registration Statement (including any amendments thereto) and the distribution or delivery of any Prospectus (including any supplements thereto), provide (A) draft copies thereof to the Investors and reflect in such documents all such comments as the Investors (and their counsel) reasonably may propose and (B) to the Investors a single firm copy of counsel designated by the Investor (which, until further notice, shall be deemed accountant's consent letter to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested included in the filing and (ii) furnish to receive such notification; each, an "Investor's Counsel") to review each Investor whose Registrable Securities are included in the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such its legal counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment identified to the Registration Statement is proposed to be filed; Company, (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (iA) promptly after the same is prepared and publicly distributed, filed with the SECCommission, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectusProspectus, and each amendment or supplement thereto, and (iiB) such number of copies of a prospectus, the Prospectus and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(fi) Register or qualify the Registrable Securities covered by the Registration Statement under such securities or "blue sky" laws of such jurisdictions as the Investors who hold a majority-in-interest of the Registrable Securities being offered reasonably request, (ii) prepare and file in such jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take all such other lawful actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all such other lawful actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (B) subject itself to general taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;
(e) As promptly as practicable after becoming aware thereofof such event, notify the each Investor of the happening occurrence of any event of which the Company has knowledgeevent, as a result of which the prospectus Prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts and promptly to prepare a supplement or an amendment to the Registration Statement or other appropriate filing with and supplement to the SEC Prospectus to correct such untrue statement or omission, and deliver a number of copies of such supplement or and amendment to the each Investor as the such Investor may reasonably request;
(gf) [intentionally omitted ]
As promptly as practicable after becoming aware of such event, notify each Investor who holds Registrable Securities being sold (hor, in the event of an underwritten offering, the managing underwriters) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoingissuance by the Commission of any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time and take all lawful action to effect the withdrawal, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Companyrecession or removal of such stop order or other suspension;
(ig) Use its reasonable efforts to secure and maintain the designation of Cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Market principal national securities exchange, and the included in an inter-dealer quotation system of a registered national securities association, on or in which securities of the Registrable Securities on same class or series issued by the Principal Trading MarketCompany are then listed or included;
(jh) Provide Maintain a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(ki) Cooperate with the Investor Investors who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement registration statement and enable such certificates for the Registrable Securities to be in such denominations or amounts amounts, as the case may be, as the Investors reasonably may request and registered in such names as the Investor may reasonably request, ; and, within five (5) three business days after a Registration Statement registration statement which includes Registrable Securities is ordered declared effective by the SECCommission, the Company shall deliver, deliver and shall cause legal counsel selected by the Company to deliver, deliver to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such registration statement) an appropriate instruction and and, to the extent necessary, an opinion of such counsel;
(j) Take all such other lawful actions reasonably necessary to expedite and facilitate the disposition by the Investors of their Registrable Securities in accordance with the intended methods therefor provided in the Prospectus which are customary under the circumstances;
(k) Make generally available to its security holders as soon as practicable, but in any event not later than three (3) months after (i) the effective date (as defined in Rule 158(c) under the Securities Act) of the Registration Statement, and (ii) the effective date of each post-effective amendment to the Registration Statement, as the case may be, an earnings statement of the Company and its subsidiaries complying with Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(l) In the event of an underwritten offering, promptly include or incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the managers reasonably agree should be included therein and to which the Company does not reasonably object and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after it is notified of the matters to be included or incorporated in such Prospectus supplement or post-effective amendment;
(i) Make reasonably available for inspection by Investors, any underwriter participating in any disposition pursuant to the Registration Statement, and any attorney, accountant or other agent retained by such Investors or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and (ii) cause the Company's officers, directors and employees to supply all information reasonably requested by such Investors or any such underwriter, attorney, accountant or agent in connection with the Registration Statement, in each case, as is customary for similar due diligence examinations; provided, however, that all records, information and documents that are designated in writing by the Company, in good faith, as confidential, proprietary or containing any material nonpublic information shall be kept confidential by such Investors and any such underwriter, attorney, accountant or agent (pursuant to an appropriate confidentiality agreement in the case of any such holder or agent), unless such disclosure is made pursuant to judicial process in a court proceeding (after first giving the Company an opportunity promptly to seek a protective order or otherwise limit the scope of the information sought to be disclosed) or is required by law, or such records, information or documents become available to the public generally or through a third party not in violation of an accompanying obligation of confidentiality; and provided, further, that, if the foregoing inspection and information gathering would otherwise disrupt the Company's conduct of its business, such inspection and information gathering shall, to the maximum extent possible, be coordinated on behalf of the Investors and the other parties entitled thereto by one firm of counsel designed by and on behalf of the majority in interest of Investors and other parties;
(n) In connection with any underwritten offering, make such representations and warranties to the Investors participating in such underwritten offering and to the managers, in form, substance and scope as are customarily made by the Company to underwriters in secondary underwritten offerings;
(o) In connection with any underwritten offering, obtain opinions of counsel to the Company (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managers) addressed to the underwriters, covering such matters as are customarily covered in opinions requested in secondary underwritten offerings (it being agreed that the matters to be covered by such opinions shall include, without limitation, directions to as of the Transfer Agent to issue certificates date of Registrable Securities (the opinion and as of the Effective Time of the Registration Statement or most recent post-effective amendment thereto, as the case may be, the absence from the Registration Statement and the Prospectus, including certificates for Registrable Securities any documents incorporated by reference therein, of an untrue statement of a material fact or the omission of a material fact required to be issued after stated therein or necessary to make the Effective Date and replacement certificates for Registrable Securities previously issuedstatements therein (in the case of the Prospectus, in light of the circumstances under which they were made) without legends or other restrictionsnot misleading, subject to compliance customary limitations);
(p) In connection with applicable lawany underwritten offering, obtain "cold comfort" letters and updates thereof from the independent public accountants of the Company (and, if necessary, from the independent public accountants of any subsidiary of the Company or of any business acquired by the Company, in each case for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each underwriter participating in such underwritten offering (if such underwriter has provided such letter, representations or documentation, if any, required for such cold comfort letter to be so addressed), in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with secondary underwritten offerings;
(q) In connection with any underwritten offering, deliver such documents and certificates as may be reasonably required by the managers, if any; and
(r) In the event that any broker-dealer registered under the Exchange Act shall be an "AFFILIATE" (as defined in Rule 2729(b)(1) of the rules and regulations of the National Association of Securities Dealers, Inc. (the "NASD RULES") (or any successor provision thereto)) of the Company or has a "CONFLICT OF INTEREST" (as defined in Rule 2720(b)(7) of the NASD Rules (or any successor provision thereto)) and such broker-dealer shall underwrite, participate as a member of an underwriting syndicate or selling group or assist in the distribution of any Registrable Securities covered by the Registration Statement, whether as a holder of such Registrable Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company shall assist such broker-dealer in complying with the requirements of the NASD Rules, including, without limitation, prospectus delivery requirements; and
by (lA) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor engaging a "QUALIFIED INDEPENDENT UNDERWRITER" (as defined in Rule 2720(b)(15) of the NASD Rules (or any successor provision thereto)) to participate in the preparation of the Registration Statement relating to such Registrable Securities pursuant Securities, to exercise usual standards of due diligence in respect thereof and to recommend the public offering price of such Registrable Securities, (B) indemnifying such qualified independent underwriter to the Registration Statementextent of the indemnification of underwriters provided in Section 6 hereof, and (C) providing such information to such broker-dealer as may be required in order for such broker-dealer to comply with the requirements of the NASD Rules.
Appears in 1 contract
Obligations of the Company. In connection with the registration of the Registrable SecuritiesSecurities pursuant to Sections 2 and 3 hereof, as applicable, the Company shall do each of the followingshall:
(a) Prepare prepare promptly, and file with the SEC by the Required Filing Datenot later than July 31, 1998, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above), and thereafter use its reasonable best efforts to cause such each Registration Statement relating to Registrable Securities to become effective by the Required Effective Date as soon as possible after such filing, and keep the Registration Statement effective pursuant to Rule 415 at all timestimes until the earliest of (i) such date as is three years after the date the Registration Statement is first declared effective by the SEC, other than during Permitted Suspension Periods(ii) the date, during on or after two years after the Closing Date, on which all of Registrable Securities may be sold without regard to any requirement under the Securities Act with respect to volume or manner of sale or the filing of any notice relating thereto, and (iii) the date on which the Investors no longer beneficially own any Registrable Securities (the period (until such date, the "Registration Period") continuing until ); submit to the earlier of (i) SEC, within five business days after the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (ii) the date the Investor Company learns that no longer own any review of the Registrable SecuritiesRegistration Statement will be made by the staff of the SEC or that the staff of the SEC has no further comments on the Registration Statement, which as the case may be, a request for acceleration of effectiveness of the Registration Statement to a time and date not later than 48 hours after the delivery of such request; and the Company represents and warrants to, and covenants and agrees with, the Investors that the Registration Statement (including any amendments or supplements thereto and prospectuses contained therein), at the time it is first filed with the SEC, at the time it is ordered effective by the SEC and at all times during which it is required to be effective hereunder (and each such amendment and supplement at the time it is filed with the SEC and at all time during which it is available for use in connection with the offer and sale of the Registrable Securities) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement therewith as may be necessary to keep the such Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the furnish to each Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review whose Registrable Securities are included in the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SECits legal counsel, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, SEC or received by the Company, one (1) copy of the Registration StatementStatement and any amendment thereto, each preliminary prospectus and prospectus, prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC and each item of written correspondence from the SEC or the staff of the SEC relating to such Registration Statement (other than any portion of any thereof that contains information for which the Company 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 the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Investor;
(d) use reasonable efforts to (i) register and qualify the InvestorRegistrable Securities covered by the Registration Statement under such securities or blue sky laws of such jurisdictions as the Investors who hold a majority in interest of the Registrable Securities being offered reasonably request, (ii) prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto (I) to qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(d), (II) to subject itself to general taxation in any such jurisdiction, (III) to file a general consent to service of process in any such jurisdiction, (IV) to provide any undertakings that cause more than nominal expense or burden to the Company or (V) to make any change in its articles or by-laws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its shareholders;
(e) in the event that the Registrable Securities are being offered in an underwritten offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, including, without limitation, customary indemnification and contribution obligations, with the underwriters of such offering;
(f) As as promptly as practicable after becoming aware thereofof such event or circumstance, notify the each Investor of the happening of any event or circumstance of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request. If such event is the conduct of negotiations with respect to a transaction, the disclosure of which the Company reasonably concludes would be detrimental to the Company (each, a "Negotiation Event"), the Company shall be entitled, upon giving notice of a Negotiation Event to each holder (the "Negotiation Notice") and upon the reasonable determination of the Company, after consulting with counsel, that failure to disclose the Negotiation Event would constitute an omission to state a material fact required to be stated in the Registration Statement, to require the Investors to suspend sales of the Common Stock pursuant to the Registration Statement for a period of up to fifteen (15) days after the giving of the Negotiation Notice; provided, however, that the Company shall not give more than one (1) Negotiation Notice in any twelve-month period;
(g) [intentionally omitted ]as promptly as practicable after becoming aware of such event, notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of any stop order or other suspension of effectiveness of the Registration Statement at the earliest possible time;
(h) Comply with Regulation FD or any similar rule or regulation regarding permit a single firm of counsel designated as selling shareholders' counsel by the dissemination of information regarding the Company, and Investors who hold a majority in furtherance interest of the foregoingRegistrable Securities being sold to review and comment on the Registration Statement and all amendments and supplements thereto a reasonable period of time prior to their filing with the SEC, and not in limitation thereofprovided, not disclose that to the Investor any nonextent that the failure of such counsel to respond promptly hereunder results in a delay in the filing of the registration statement beyond July 31, 1998 or results in the delay in the effective date thereof beyond the 90-public material information regarding day period specified in Section 2(c)(ii), the CompanyJuly 31, 1998 filing deadline specified in Section 2(c)(i) and the 90-day period specified in Section 2(c)(ii) shall be extended by the amount of such resulting delay;
(i) Use make generally available to its reasonable security holders as soon as practical, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the Securities Act) covering a twelve-month period beginning not later than the first day of the Company's fiscal quarter next following the effective date of the Registration Statement;
(j) at the request of the Investors who hold a majority in interest of the Registrable Securities being sold, furnish on the date that Registrable Securities are delivered to an underwriter, if any, for sale in connection with the Registration Statement (i) a letter, dated such date, from the Company's independent certified public accountants in form and substance as is customarily given by independent certified public accountants to underwriters in underwritten public offerings, addressed to the underwriters; and (ii) an opinion, dated such date, from counsel representing the Company for purposes of such Registration Statement, in form and substance as is customarily given in underwritten public offerings, addressed to the underwriters and the Investors;
(k) make available for inspection by any Investor, any underwriter participating in any disposition pursuant to the Registration Statement and a single firm of counsel and a single firm of accountants or other agents retained by any such Investor and one firm of attorneys retained by all such underwriters (collectively, the "Inspectors"), all pertinent financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records"), as shall be reasonably necessary to enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information that any Inspector reasonably may request for purposes of such due diligence; provided, however, that each Inspector shall hold in confidence and shall not make any disclosure (except to an Investor) of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement, (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court or government body of competent jurisdiction or (iii) the information in such Records has been made generally available to the public other than by disclosure in violation of this or any other agreement. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 4(k). Each Investor agrees that it shall, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at the Company's own expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidential. The Company shall hold in confidence and shall not make any disclosure of information concerning an Investor provided to the Company pursuant to Sections 5(a) and 5(e) hereof unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement, (iii) the release of such information is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction or (iv) such information has been made generally available to the public other than by disclosure in violation of this or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to such Investor, at such Investor's own expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information;
(l) use its best efforts (i) to secure and maintain the designation of cause all the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading Nasdaq National Market and (the quotation "Nasdaq") or such other principal securities market on which securities of the same class or series issued by the Company are then listed or traded or (ii) if securities of the same class or series as the Registrable Securities are not then listed on Nasdaq or any such other securities market, to cause all of the Registrable Securities covered by the Registration Statement to be listed on the Principal Trading MarketNew York Stock Exchange or the American Stock Exchange;
(jm) Provide provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(kn) Cooperate cooperate with the Investor Investors who hold Registrable Securities being offered and the managing underwriter(s), if any, to facilitate the timely preparation and delivery of certificates for the (not bearing any restrictive legends) representing Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor managing underwriter(s), if any, or the Investors may reasonably request and registered in such names as the managing underwriter(s), if any, or the Investors may request, ; and, within five (5) three business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, deliver to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such Registration Statement) an appropriate instruction substantially in the form attached hereto as Exhibit 1 and shall deliver to the Investors (with a copy to the Company's transfer agent) an opinion of such its general counsel, which in the form attached hereto as Exhibit 2;
(o) during the Registration Period the Company shall includenot bid for or purchase any Common Stock or any right to purchase Common Stock or attempt to induce any person to purchase any such security or right if such bid, without limitation, directions purchase or attempt would in any way limit the right of the Investors to the Transfer Agent to issue certificates of sell Registrable Securities (including certificates for Registrable Securities to be issued after by reason of the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirementslimitations in Regulation M under the Exchange Act; and
(lp) Take take all other reasonable actions necessary to expedite and facilitate disposition by the Investor Investors of the Registrable Securities pursuant to the Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Tera Computer Co \Wa\)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:.
(a) Prepare promptly, and file with the SEC by not later than thirty (30) day after the Required Filing Closing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) ), above, and thereafter use its reasonable best efforts to cause such each Registration Statement relating to Registrable Securities to become effective by the Required Effective Date as soon as possible after such filing, and keep the Registration Statement effective pursuant to Rule 415 at all times, other than during Permitted Suspension Periods, during times until the period earliest (the "Registration Period") continuing until the earlier of (i) the date that is one year after the Closing Date (ii) the date when the Investor Investors may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits 144, or (iiiii) the date the Investor investors no longer own any of the Registrable Securitiesregistrable securities, which Registration registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;; and
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as a set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Furnish to each Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review whose Registrable Securities are included in the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SECits legal counsel, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or of supplement thereto, and (ii) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the such Investor;
(fd) Use reasonably efforts to (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or blue sky laws of such jurisdictions as the Investors who hold a majority in interest of the Registrable Securities being offered reasonably request and in which significant volumes of shares of Common Stock are traded, (ii) prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registration Securities for sale in such jurisdictions; PROVIDED, HOWEVER, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (B) subject itself to general taxation in any such jurisdiction, (C) file a general consent to service of process in any such jurisdiction, (D) provide any undertakings that cause more than nominal expense or burden to the Company of (E) make any change in its charter or by-laws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders;
(e) As promptly as practicable after becoming aware thereofof such event, notify the each Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;
(gf) [intentionally omitted ]
As promptly as practicable after becoming aware of such event, notify each Investor who holds Registrable Securities being sold (hor, in the event of an underwritten offering, the managing underwriters) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to issuance by the Investor SEC of any non-public material information regarding stop order or other suspension of the Companyeffectiveness of the Registration Statement at the earliest possible time;
(ig) Use its reasonable efforts best efforts, if eligible, either to (i) cause all the Registrable Securities covered by the Registration Statement to be listed on a national securities exchange and on each additional national securities exchange on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (ii) secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on as a National Association of Securities Dealers Automated Quotations System ("NASDAQ") "national market system security" within the Principal Trading Market and meaning of Rule 11Aa2-I of the SEC under the Securities Exchange Act of 1934, as amended (the "Exchange Act"); or the quotation of the Registrable Securities on the Principal Trading NASDAQ SmallCap Market; or if, despite the Company's best efforts to satisfy the preceding clause (i) or (ii), the Company is unsuccessful in doing so, to secure NASDAQ authorization and quotation for such Registrable Securities and, without limiting the generality of the foregoing, to arrange for at least two market makers to register with the National Association of Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securities;
(jh) Provide a transfer agent ("Transfer Agent") and registraragent, which may be a single entity, for the to Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(ki) Cooperate with the Investor Investors who hold Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the (not bearing any restrictive legends) representing Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor Investors may reasonably request and registered in such names as the Investors may request, ; and, within five three (53) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestors whose Registrable Securities are included in such Registration Statement) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(lj) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (First Pacific Networks Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:.
(a) Prepare promptly, and file with the SEC by thirty (30) days after the Required Filing Closing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such each Registration Statement relating to Registrable Securities to become effective by within sixty (60) days of the Required Effective Closing Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, during times until the period earliest (the "Registration Period") continuing until the earlier of (i) the date that is two (2) years after the Closing Date, (ii) the date when the Investor Investors may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (iiiii) the date the Investor Investors no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Investor;
(f) As promptly as practicable after becoming aware thereof, notify the Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement.been
Appears in 1 contract
Samples: Registration Rights Agreement (Escalon Medical Corp)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptly, and file with the SEC by the Required Filing Date, Date a Registration Statement with respect to covering not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and to keep the such Registration Statement continuously effective at all times, other than during Permitted Suspension Periods, during under the period (the "Registration Period") continuing Securities Act until such date as is the earlier of (ix) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits covered by such Registration Statement have been sold or (iiy) the date the Investor no longer own any of on which the Registrable SecuritiesSecurities may be sold without any restriction pursuant to Rule 144 as determined by the counsel to the Company pursuant to a written opinion letter, addressed to the Company's transfer agent to such effect (the "Effectiveness Period"), which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(bi) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Effectiveness Period; (ii) respond as promptly as possible, but in no event later than thirty (30) days, to any comments received from the SEC with respect to the Registration Period (except during Permitted Suspension Periods), Statement or any amendment thereto and as promptly as possible provide the Investors true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and, (iii) during the Registration Effectiveness Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm Furnish to the Investors and their counsel, which shall initially be The Law Offices of counsel designated by the Investor Louis E. Taubman, P.C. (which"Investor'x Xxxxxxx"), until further notice, shall be deemed xxxies of all documents proposed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq.filed, which firm has requested documents will be subject to receive such notification; each, an "the review of the Investors and Investor's Counsel", and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of Investor's Counsel , to conduct a reasonable review of such documents. The Company shall not file the Registration Statement and all or any such Prospectus or any amendments and or supplements thereto to which the Initial Investors holding a reasonable period majority of time (but not less than the Registrable Securities or Investor's Counsel shall reasonably object in writing within three (3) business days) prior to Business Days of their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filedreceipt thereof;
(d) Notify the each Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the InvestorInvestors); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the each Investor and Investor's Counsel shall have the opportunity to comment thereon;
(e) Furnish to the each Investor and to Investor's Counsel Counsel, without charge, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Investor and subject to the Investorprovisions of Sections 3(i) and 4(b), the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Investors in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto;
(f) As promptly as practicable after becoming aware thereof, notify the each Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;
(g) [intentionally omitted ]As promptly as practicable after becoming aware thereof, notify each Investor who holds Registrable Securities (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of a Notice of Effectiveness or any notice of effectiveness or any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time and use reasonable efforts to avoid the issuance of, or, if issued, obtain the withdrawal of, as promptly as possible, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction;
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts Notwithstanding the foregoing, if at any time or from time to secure and maintain time after the designation date of all effectiveness of the Registrable Securities covered by Registration Statement, the Company notifies the Investors in writing that the effectiveness of the Registration Statement on is suspended for any reason, whether due to a Potential Material Event or otherwise, the Principal Trading Market and Investors shall not offer or sell any Registrable Securities, or engage in any other transaction involving or relating to the quotation Registrable Securities, from the time of the Registrable Securities on giving of such notice until such Investor receives written notice from the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for Company that such the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery effectiveness of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable has been restored, whether because the Potential Material Event has been disclosed to the public or it no longer constitutes a Potential Material Event or otherwise; provided, however, that the Company may not so suspend the right to such certificates for the holders of Registrable Securities during the periods the Registration Statement is required to be in effect other than during a Permitted Suspension Period (and the applicable provisions of Section 2(b) shall apply with respect to any such denominations suspension other than during a Permitted Suspension Period). The term "Permitted Suspension Period" means up to two such suspension periods during any consecutive 12-month period, neither of which such period shall (i) be for more than fifteen (15) days or amounts as the case may be, as the Investor may reasonably request, and, within five (5ii) begin less than ten (10) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor last day of the Registrable Securities pursuant to the Registration Statement.preceding suspension (whether or not such last day was during or after a Permitted Suspension Period);
Appears in 1 contract
Samples: Series a Convertible Preferred Stock Purchase Agreement (StatSure Diagnostic Systems, Inc.)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:.
(a) Prepare promptly, and file with the SEC by as soon as possible after the Required Filing Closing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such the Registration Statement relating to Registrable Securities to become effective not later than five (5) days after the Company is notified by the Required Effective Date SEC that the Registration Statement may be declared effective and keep the Registration Statement effective pursuant to Rule 415 at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing times until the earlier earliest of (i) the date that is one (1) year after the Closing Date (ii) the date when the Investor Investors may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits limitations or (iiiii) the date the Investor Buyer no longer own owns any of the Registrable SecuritiesSecurities (the "Registration Period"), which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;.
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;.
(c) Permit a single firm of Furnish to Buyer and its legal counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment identified to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies orCompany, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto and such other documents, as the Investor Buyer may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the InvestorSecurities;
(fd) Use reasonable efforts to (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or blue sky laws of such jurisdictions as the Investors who hold a majority in interest of the Registrable Securities being offered reasonably request and in which significant volumes of shares of Common Stock are traded, (ii) prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (B) subject itself to general taxation in any such jurisdiction, (C) file a general consent to service of process in any such jurisdiction, (D) provide any undertakings that cause more than nominal expense or burden to the Company or (E) make any change in its certificate of incorporation or by-laws, which in each case the Board of Directors of the Company determines to be contrary to the best interests of the Company and its stockholders;
(e) As promptly as practicable after becoming aware thereofof such event, notify the each Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the each Investor as the such Investor may reasonably request;
(gf) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination As promptly as practicable after becoming aware of information regarding the Companysuch event, and in furtherance notify each Investor who holds Registrable Securities being sold of the foregoing, and not in limitation thereof, not disclose to issuance by the Investor SEC of any non-public material information regarding stop order or other suspension of the Companyeffectiveness of the Registration Statement;
(g) Upon effectiveness of registration, and upon receipt of the legended Shares from Buyer, the Company shall (i) Use its reasonable efforts instruct the transfer agent to secure and maintain the designation of remove all restrictive legends from the Registrable Securities covered by Securities; (ii) instruct the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of issue certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor Buyer may reasonably request and registered in such names as the Buyer may request, and, within five ; and (5iii) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; andremove any stop transfer order instructions.
(lh) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor Buyer of the Registrable Securities pursuant to the Registration Statement.
Appears in 1 contract
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptly, and file with the SEC by the Required Filing Date, Date a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date as promptly as possible and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, times during the period (the "Registration Period") continuing until the earlier earliest of (i) the date that is five (5) years after the last day of the calendar month following the month in which the Effective Date occurs, (ii) the date when the Investor Holders may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits 144, or (iiiii) the date the Investor Holders no longer own hold any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit The Company shall permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") Holders to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects. If such counsel objects, unless the Company reasonably determines that Required Filing Date shall be extended by the number of days from the date the Registration Statement was delivered to such document is required by law counsel to be so filedthe date such counsel no longer objects;
(d) Notify each Holder, such Holders' legal counsel identified to the Investor and the Investor's Counsel Company (which, until further written notice, shall be deemed to be McGuireWoods LLP, 9 West 57th Street, Suite 1000, Xxx Xxxx, XX 00000, XXXX: Xxxxxxx X. Xxxxxx, Esq.; (txx "Xxxxxxx' Xxxxsel")), and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three five (35) business days prior to such filing) and (if requested by any such personPerson) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of relating to a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the InvestorHolders); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings Proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 Proceeding for such purpose; and (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel Holders with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor Holders shall have the opportunity to comment thereon;
(e) Furnish to the Investor each Holder and to Investorsuch Holder's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the Investor such Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Investorsuch Holder;
(f) As promptly as practicable after becoming aware thereof, notify the Investor each Holder of the happening of any event of which the Company has actual knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor each Holder as the Investor such Holder may reasonably request;
(g) [intentionally omitted ]As promptly as practicable after becoming aware thereof, notify each Holder who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of a Notice of Effectiveness or any notice of effectiveness or any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time;
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of Notwithstanding the foregoing, and if at any time or from time to time after the date of effectiveness of the Registration Statement, the Company notifies the Holders in writing of the existence of a Potential Material Event, the Holders shall not offer or sell any Registrable Securities, or engage in limitation thereof, not disclose any other transaction involving or relating to the Investor Registrable Securities, from the time of the giving of notice with respect to a Potential Material Event until such Holder receives written notice from the Company that such Potential Material Event either has been disclosed to the public or no longer constitutes a Potential Material Event; provided, however, that the Company may not so suspend the right to such holders of Registrable Securities for more than two twenty (20) business day periods in the aggregate during any non12-public material information regarding month period ("Suspension Period") with at least a ten (10) business day interval between such periods, during the Companyperiods the Registration Statement is required to be in effect;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading NASDAQ/National Market System or the "OTC Bulletin Board Market" of the National Association of Securities Dealers Automated Quotations System ("NASDAQ") within the meaning of Rule 11Aa2-1 of the SEC under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the quotation of the Registrable Securities on The NASDAQ National Market System; and further use its best efforts to arrange for at least two market makers to register with the Principal Trading MarketNational Association of Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securities;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than three (3) business days after the initial Effective Dateeffective date of the Registration Statement;
(k) Cooperate with the Investor Holders to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor Holders may reasonably request, and, within five three (53) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorHolders whose Registrable Securities are included in such Registration Statement) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and;
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor Holders of the Registrable Securities pursuant to the Registration Statement; and
(m) Not take or omit to take, any actions that would preclude the filing or effectiveness of the Registration Statement or require the withdrawal of the Registration Statement.
Appears in 1 contract
Obligations of the Company. In connection with the registration of the resale of Registrable SecuritiesSecurities pursuant to this Agreement, the Company shall do each of the followingshall, as expeditiously as reasonably possible:
(a) Prepare promptly, and file with the SEC by SEC, within thirty (30) days after (i) the Required Filing Dateclose of the Company's Private Placement, a resale registration statement or registration statements (the "Registration Statement Statement") with respect to not less than the number of all Registrable Securities provided in Section 2(a) aboveincluded therein, and thereafter use its reasonable best efforts to cause such the Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and as soon as reasonably possible after such filing, and, with respect to any registration that does not involve an underwriting, to keep the Registration Statement effective pursuant to Rule 415 under the Securities Act for a period of at all timesleast seven years after the close of the Company's Private Placement, other than or such shorter period as prescribed by Rule 144 promulgated under the Securities Act or during Permitted Suspension Periods, during which the period (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume are sold, or other restrictions or limits or (ii) the date the Investor until there are no longer own any of the more Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;.
(b) Prepare and file with the SEC such amendments (including post-post- effective amendments) and supplements to the Registration Statement and the any prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective (i) for such period as may be required by the Securities Act with respect to an underwritten offering and (ii) for at all times least seven years after the close of the Company's Private Placement, or such shorter period as prescribed by Rule 144, or until there are no more Registrable Securities, with respect to a non-underwritten offering, and during the Registration Period (except during Permitted Suspension Periods), and, during the Registration Period, such periods to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities securities covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Furnish promptly to each Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement covering any or all of the whose Registrable Securities or the initiation of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company makes any statement made are included 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto thereto, and of such other documents, documents as the such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Investor.
(d) Use its reasonable efforts to register and qualify the Investor;Registrable Securities covered by the Registration Statement under such other securities or Blue Sky laws of such jurisdiction as shall be reasonably requested by the Investors who hold a majority in interest of the Registrable Securities covered by the Registration Statement and, with respect to a non-underwritten offering, prepare and file in those jurisdictions such amendments (including post- effective amendments) and supplements and to take such other actions as may be necessary to maintain such registration and qualification in effect at all times for a period of at least seven years after the close of the Company's Private Placement, or such shorter period as prescribed by Rule 144 or during which the Registrable Securities are sold, or until there are no more Registrable Securities, and to take all other actions necessary or advisable to enable the disposition of such securities in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (i) qualify to do business, file a general consent to service of process or subject itself to general taxation in any such states or jurisdictions or (ii) provide any undertaking or make any change in its Certificate of Incorporation or bylaws.
(e) If the Registration Statement relates to an underwritten offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, including, without limitation, customary indemnification and contribution obligations, with the Underwriter's Representative.
(f) As promptly as practicable after becoming aware thereofNotify the Investors who hold Registrable Securities being sold (or in the event of an underwritten offering, notify the Investor Underwriter's Representative), at any time when a prospectus relating to Registrable Securities covered by the Registration Statement is required to be delivered under the Securities Act, of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, therein not misleading in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), then existing. The Company shall use its best efforts promptly to prepare a amend or supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct any such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;.
(g) [intentionally omitted ]Notify the Investors who hold Registrable Securities being sold (or in the event of an underwritten offering, the Underwriter's Representative) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.
(h) Comply Permit a single firm of counsel, designated as selling shareholders' counsel by the holders of a majority in interest of the Registrable Securities being sold, to review the Registration Statement and all amendments and supplements thereto a reasonable period of time prior to their filing, and shall not file any document in a form to which such counsel reasonably objects.
(i) Make generally available to its security holders as soon as practicable, but not later than forty five (45) days after the close of the period covered thereby, an earnings statement (in form complying with Regulation FD the provisions of Rule 158 under the Securities Act) covering a twelve-month period beginning not later than the first day of the Company's fiscal quarter next following the effective date of the Registration Statement.
(j) At the request of the Investors who hold a majority in interest of the Registrable Securities being sold, furnish to the underwriters, if any, on the date that Registrable Securities are delivered to the underwriters for sale in connection with a registration pursuant to this Agreement (i) an opinion, dated such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, and (ii) a letter, dated such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the underwriters.
(k) Make available for inspection by any underwriters participating in the offering and the counsel, accountants or any similar rule or regulation regarding the dissemination other agents retained by such underwriter, all pertinent financial and other records, corporate documents and properties of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding cause the Company;'s officers, directors and employees to supply all information reasonably requested by such underwriters in connection with the Registration Statement.
(il) Use If the Shares are then listed on a national securities exchange, use its reasonable best efforts to secure and maintain the designation of all cause the Registrable Securities covered by to be listed on such exchange if the Registration Statement listing of such Registrable Securities is then permitted under the rules of such exchange, or if the Shares are not then listed on the Principal Trading Market and a national securities exchange, use its best efforts to facilitate the quotation of the Registrable Shares on NASDAQ, and use its best efforts to cause continued listing of the Shares so long as the Registration Statement is in effect under the Securities on the Principal Trading Market;Act.
(jm) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;effective date of the Registration Statement.
(kn) Cooperate with the Investor Take all actions reasonably necessary to facilitate the timely preparation and delivery of certificates for (not bearing any restrictive legend) representing the Registrable Securities to be offered sold pursuant to the Registration Statement and to enable such certificates for the Registrable Securities to be in such denominations or amounts and registered in such names as the case may be, as the Investor Investors or any underwriters may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and.
(lo) Take all other reasonable actions reasonably necessary to expedite and facilitate disposition by the Investor Investors of the Registrable Securities pursuant to the Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Access Pharmaceuticals Inc)
Obligations of the Company. In connection with Whenever required under this Section 7 to effect the registration of the any Registrable Securities, the Company shall do each of the followingshall, as expeditiously as reasonably possible:
(a) Prepare promptly, and file with the SEC by the Required Filing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing until the earlier of (i) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (ii) the date the Investor no longer own any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC a registration statement with respect to such amendments Registrable Securities and use all reasonable efforts to cause such registration statement to become effective, and keep such registration statement effective for a period of up to ninety (including post-effective amendments90) and supplements to days or until the distribution contemplated in the Registration Statement and the prospectus used in connection with the Registration Statement has been completed (such period, as may be necessary extended hereunder, the “Effectiveness Period”); provided, however, that the Effectiveness Period shall be extended for a period of time equal to keep the Registration Statement effective period the Investor refrains from selling any securities included in such registration at all times during the Registration Period request of an underwriter of Common Stock (except during Permitted Suspension Periods)or other securities) of the Company. In the event that, in the reasonable judgment of the Company, it is advisable to suspend use of the prospectus relating to such registration statement for a discrete period of time (a “Deferral Period”) due to pending material corporate developments or similar material events that have not yet been publicly disclosed and as to which the Company believes public disclosure will be prejudicial to the Company, the Company shall deliver written notice to the Investor to the effect of the foregoing and, during upon receipt of such notice, the Registration Period, comply with the provisions Investor agrees not to dispose of the Securities Act with respect to the disposition of all Registrable Securities covered by such registration statement (other than in transactions exempt from the Registration Statement until registration requirements under the Securities Act); provided, however, that such Deferral Period for all registration statements under this Section 7 shall be no longer than forty-five (45) days in any three-month period or ninety (90) days in any 12-month period; provided, that in the case of a pending material corporate development or similar material event relating to an acquisition or a probable acquisition or financing, recapitalization, business combination or other similar transaction, the Company may, without incurring any obligation to pay liquidated damages pursuant to Section 7.10, deliver to the Investor a second written notice to the effect set forth above, which shall have the effect of extending the Deferral Period by up to an additional fifteen (15) days in any three-month period, or such shorter period of time as all is specified in such second notice. The Effectiveness Period shall be extended for a period of time equal to such Deferral Period.
(b) Furnish, at least five (5) days before filing a registration statement that registers such Registrable Securities have been disposed of in accordance with the intended methods of disposition Securities, a draft prospectus relating thereto and any amendments or supplements (if any) relating to such registration statement or prospectus, to one (1) counsel selected by the seller or sellers thereof Investor (“Investor Counsel”) copies of all such documents proposed to be filed (it being understood that such five (5) day period need not apply to successive drafts of the same document proposed to be filed so long as set forth such successive drafts are supplied to Investor Counsel in advance of the Registration Statement;proposed filing by a period of time that is customary under the circumstances).
(c) Permit a single firm Notify Investor Counsel promptly in writing (i) of counsel designated any comments by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement such registration statement or any post-effective amendmentprospectus, when the same has become effective; (ii) of or any request by the SEC for the amending or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus supplementing thereof or for additional information; information with respect thereto, (iiiii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement covering such registration statement or prospectus or any amendment or all of the Registrable Securities supplement thereto or the initiation of any proceedings for that purpose; , and (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (viii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the such Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose; .
(d) Prepare and (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses file with the SEC so that such amendments and supplements to such registration statement and the Investor shall have prospectus used in connection with such registration statement as may be necessary to comply with the opportunity provisions of the Securities Act with respect to comment thereon;the disposition of all securities covered by such registration statement.
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number numbers of copies of a prospectus, including a preliminary prospectus, and any amendment or supplement thereto, all amendments and supplements thereto in conformity with the requirements of the Securities Act, and such other documents, documents as the Investor may reasonably request in order to facilitate the disposition of the such Registrable Securities owned by the Investor;Securities.
(f) As promptly Use all reasonable efforts to register and qualify the securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as practicable after becoming aware thereofshall be reasonably requested by the Investor; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions, unless the Company is already subject to service in such jurisdiction and except as may be required under the Securities Act.
(g) In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of such offering. If the Investor participates in such underwriting, it shall also enter into and perform the Investor’s obligations under such an agreement.
(h) Promptly notify the Investor at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statementsuch registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading or, if for any reason it shall be necessary during such time period to amend or supplement the registration statement or the prospectus in order to comply with the Securities Act, whereupon, in either case, the Investor shall immediately cease to use such registration statement or prospectus for any purpose and, subject as promptly as practicable thereafter, the Company shall prepare and file with the SEC, and furnish without charge to Section 4(c)the Investor and managing underwriters, use its best efforts promptly to prepare if any, a supplement or amendment to the Registration Statement such registration statement or other appropriate filing with the SEC to prospectus that will correct such untrue statement or omission, omission or effect such compliance and deliver a number of such copies of such supplement or amendment to the Investor thereof as the Investor and any underwriters may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;.
(i) Use its reasonable efforts to secure and maintain the designation of Cause all the such Registrable Securities covered registered pursuant hereunder to be listed on each securities exchange, stock market or automated quotation system on which similar securities issued by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;Company are then listed.
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, registrar for the all Registrable Securities registered pursuant hereunder and a CUSIP number for all such Registrable Securities, in each case not later than the initial Effective Date;effective date of such registration.
(k) Cooperate Use its reasonable efforts to furnish, at the request of the underwriter pursuant to an underwriting agreement, on the date that such Registrable Securities are delivered to the underwriters for sale in connection with a registration pursuant to Section 7.2, (i) an opinion, dated such date, of the Investor to facilitate counsel representing the timely preparation and delivery of certificates Company for the Registrable Securities purposes of such registration, in form and substance as is customarily given to be offered pursuant underwriters in an underwritten public offering, addressed to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliverunderwriters, and shall cause legal counsel selected (ii) a letter, dated such date, from the independent registered public accounting firm of the Company, in form and substance as is customarily given by the Company independent registered public accounting firm to deliverunderwriters in an underwritten public offering, addressed to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statementunderwriters.
Appears in 1 contract
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptly, and file with the SEC by the Required Filing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter and, thereafter, use its reasonable best all diligent efforts to cause such the Registration Statement relating to the Registrable Securities to become effective by the Required earlier of (i) five (5) business days after notice from the SEC that the Registration Statement may be declared effective, or (ii) the Effective Date Date, and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing times until the earlier earliest of (iA) the date that is one year after the completion of the last Closing Date under the Equity Credit Agreement, (B) the date when the Investor Subscriber may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits limitations, or (iiC) the date the Investor Subscriber no longer own owns any of the Registrable SecuritiesSecurities (collectively, the "Registration Period"), which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in under which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, and comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all the expiration of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration StatementPeriod;
(c) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") Subscriber to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines it being understood that such document is required by law review and objections shall relate exclusively to be so filedmatters in the Registration Statement or omitted therefrom affecting any or all of the Equity Credit Agreement, Subscriber and the Registrable Securities or compliance with the terms of this Agreement or the other Transaction Documents;
(d) Notify Subscriber and Subscriber's legal counsel identified to the Investor and the InvestorCompany (which, until further notice, shall be deemed to be Kxxxxxx & Prager, LLP, ATTN: Sxxxxx Xxxxxxx, Esq.; "Subscriber's Counsel and any managing underwriters immediately Counsel") (and, in the case of (i)(A) below, not less than three five (35) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(Ai): (A) when a Prospectus prospectus or any Prospectus prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; and (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus the prospectus or for additional information; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company makes any statement made in the Registration Statement or Prospectus the 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 the prospectus or other documents so that, in the case of the Registration Statement or the Prospectusprospectus, 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. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor Subscriber and to InvestorSubscriber's Counsel Counsel, (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and the prospectus, and each amendment or supplement thereto, all correspondence to, with, or from the SEC and (ii) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto and such other documents, as the Investor Subscriber may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the InvestorSubscriber;
(f) Use all diligent efforts to (i) register and/or qualify the Registrable Securities covered by the Registration Statement under such other securities or blue sky laws of such jurisdictions as the Subscriber may reasonably request and in which significant volumes of shares of Common Stock are traded, (ii) prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof at all times during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualification in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(f), (B) subject itself to general taxation in any such jurisdiction, (C) file a general consent to service of process in any such jurisdiction, (D) provide any undertakings that cause more than nominal expense or burden to the Company or (E) make any change in its charter or by-laws or any then existing contracts;
(g) As promptly as practicable after becoming aware thereofof such event, notify the Investor Subscriber of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, subject to Section 4(cmisleading ("Registration Default"), and use its best all diligent efforts to promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and any other necessary steps to cure the Registration Default, and deliver a number of copies of such supplement or amendment to the Investor Subscriber as the Investor Subscriber may reasonably request;
. Failure to file such supplement or amendment to the Registration Statement with the SEC within twenty (g20) [intentionally omitted ]business days shall result in the Company incurring liquidated damages of 1% of the cost of all Registrable Securities then held by the Subscriber for each twenty (20) business day period or portion thereof, beginning on the twenty-first (21st) business day after the Registration Default and terminating on the date such supplement or amendment to the Registration Statement is filed with the SEC.
(h) Comply with Regulation FD As promptly as practicable after becoming aware of such event, notify the Subscriber (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of any notice of effectiveness or any similar rule stop order or regulation regarding the dissemination of information regarding the Company, and in furtherance other suspension of the foregoing, and not in limitation thereof, not disclose to effectiveness of the Investor any non-public material information regarding the CompanyRegistration Statement;
(i) Notwithstanding the foregoing, if at any time or from time to time after the date of effectiveness of the Registration Statement, the Company notifies Subscriber in writing of the existence of a Potential Material Event ("Blackout Notice"), Subscriber shall not offer or sell any Registrable Securities, or engage in any other transaction involving or relating to the Registrable Securities, from the time of the giving of notice with respect to a Potential Material Event until Subscriber receives written notice from the Company that such Potential Material Event either has been disclosed to the public or no longer constitutes a Potential Material Event; provided, however, that the Company may not so suspend the right to such holders of Registrable Securities for more than two ten (10) day periods in the aggregate during any 12-month period ("Blackout Period") with at least a ten (10) Business Day interval between such periods, during the periods the Registration Statement is required to be in effect;
(j) Use its commercially reasonable efforts efforts, if eligible, either to (i) cause all the Registrable Securities covered by the Registration Statement to be listed on a national securities exchange and on each additional national securities exchange on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (ii) secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on as a National Association of Securities Dealers Automated Quotations System ("Nasdaq") "Small Capitalization" within the Principal Trading Market meaning of Rule 11Aa2-1 of the SEC under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the quotation of the Registrable Securities on the Principal Trading Nasdaq Small Cap Market;
; or if, despite the Company's commercially reasonable efforts to satisfy the preceding clause (ji) Provide a transfer agent or ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SECii), the Company is unsuccessful in doing so, to secure NASD authorization and quotation for such Registrable Securities on the over-the-counter bulletin board and, without limiting the generality of the foregoing, to arrange for at least two market makers to register with the National Association of Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securities; provided, however, that the Subscriber acknowledges that the Company does not currently meet the requirements for listing on a national securities exchange or the Nasdaq Small Cap Market pursuant to (i) or (ii) and that nothing in this section shall deliver, and shall cause legal counsel selected by be construed to require the Company to deliver, to pursue such qualification until such time as the Transfer Agent Company satisfies such requirements for the Registrable Securities a period of not less than forty-five (with copies to the Investor45) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement.days;
Appears in 1 contract
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare prepare promptly, and file with the SEC by the Required Filing Date, a the Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter use its reasonable best efforts to cause such each Registration Statement relating to Registrable Securities to become effective by the Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, during times until the period earliest (the "Registration Period") continuing until the earlier of (i) the date that is two (2) years after the Closing Date, (ii) the date when the Investor may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits of the Securities Act ("Rule 144") or (iiiii) the date the Investor no longer own owns any of the Registrable Securities, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading;
(b) Prepare prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of permit one counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") Investors to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify notify the Investor Investors, Investors' legal counsel and the Investor's Counsel and any managing underwriters underwriters, if any, immediately (and, in the case of (i)(A) below, not less than three five (35) business days prior to such filing) and (if requested by any such personPerson) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus prospectus or any Prospectus prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative representatives of the Company receives receive on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus prospectus or for additional information; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that that, to the best knowledge of the Company Company, makes any statement made in the Registration Statement or Prospectus 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 prospectus or other documents so that, in the case of the Registration Statement or the Prospectusprospectus, 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel Investors with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day Business Day in advance of the filing of such responses with the SEC so that the Investor Investors shall have the opportunity to comment thereon;
(e) Furnish furnish to the Investor Investors and to Investor's Counsel counsel for the Investors (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one two (1) copy copies each of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the Investor they may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the that Investor;
(f) As as promptly as practicable after becoming aware thereofof such event, notify the Investor Investors of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), and use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the an Investor as the Investor it may reasonably request;
(g) [intentionally omitted ]as promptly as practicable after becoming aware of such event, notify the Investors (or, in the event of an underwritten offering, the managing underwriters) of the issuance by the SEC of any stop order or other suspension of the effectiveness of the Registration Statement at the earliest possible time;
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of notwithstanding the foregoing, and if at any time or from time to time after the date of effectiveness of the Registration Statement, the Company notifies the Investor in writing of the existence of a Potential Material Event, an Investor shall not offer or sell any Registrable Securities, or engage in limitation thereof, not disclose any other transaction involving or relating to the Registrable Securities, from the time of the giving of notice with respect to a Potential Material Event until Investor receives written notice from the Company that such Potential Material Event either has been disclosed to the public or no longer constitutes a Potential Material Event; provided, however, that the Company may not so suspend the right to such holders of Registrable Securities for more than two twenty (20) day periods in the aggregate during any non12-public material information regarding month period ("Suspension Period") with at least a ten (10) business day interval between such periods, during the Companyperiods the Registration Statement is required to be in effect;
(i) Use use its reasonable efforts to secure or maintain, as applicable, National Association of Securities Dealers Over the Counter Bulletin Board authorization and maintain the designation of all the quotation for such Registrable Securities covered by or a listing on any exchange upon which the Registration Statement on Common Stock is listed and, without limiting the Principal Trading Market and the quotation generality of the foregoing, to arrange for at least two market makers to register with the National Association of Securities Dealers, Inc. ("NASD") as such with respect to such Registrable Securities on the Principal Trading MarketSecurities;
(j) Provide provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Dateeffective date of the Registration Statement;
(k) Cooperate cooperate with the Investor who holds Registrable Securities being offered to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent transfer agent for the Registrable Securities (with copies to the InvestorInvestor whose Registrable Securities or securities convertible into Registrable Securities are included in such Registration Statement) an appropriate instruction and opinion of such counsel; provided, which however, that nothing in this subparagraph (k) shall include, without limitation, directions be deemed to waive any of the Transfer Agent to issue certificates provisions regarding the conditions or method of conversion of the Debentures or exercise of Debenture Warrants or the Equity Line Warrants into Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirementsSecurities; and
(l) Take take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement.
Appears in 1 contract
Obligations of the Company. In connection with When required under Section 1 -------------------------- to effect the registration of the Registrable Securities, the Company shall do each of the followingshall:
(a) Prepare promptly, and file with the SEC by the Required Filing DateSEC, a Registration Statement registration statement on Form S-3 with respect to not less than the number of such Registrable Securities provided in Section 2(a) above, and thereafter use its all commercially reasonable best efforts to cause such Registration Statement relating to Registrable Securities registration statement to become effective, and, subject to the provisions below, use commercially reasonable efforts to keep such registration statement effective by the Required Effective Date and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing until the earlier of (iA) the date when on which all of the Investor may sell all Registrable Securities under Common Shares held by each Holder can be sold without registration in a single transaction pursuant to Rule 144 without volume or other restrictions or limits 144(k) of the Act, or (iiB) the date the Investor no longer own any on which all of the Registrable SecuritiesCommon Shares have been sold to the public.
(b) If at any time after a registration statement becomes effective, which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) the Company advises the Holders in writing that the registration statement shall not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, therein not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the , or any prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods), and, during the Registration Period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by the Registration Statement until such time as all comprising a part of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement;
(c) Permit a single firm of counsel designated by the Investor (which, until further notice, registration statement shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines that such document is required by law to be so filed;
(d) Notify the Investor and the Investor's Counsel and any managing underwriters immediately (and, in the case of (i)(A) below, not less than three (3) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) 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; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In additionmisleading or the occurrence or existence of any pending corporate development that, in the reasonable discretion of the Company, makes it appropriate to suspend the availability of the registration statement and the related prospectus, the Company shall furnish the Investor's Counsel with copies of all intended written responses give notice to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance Holders that the availability of the filing registration statement is suspended and the Holders shall suspend any further sale of such responses Registrable Securities pursuant to the registration statement until the Holders have been informed in writing that the registration statement is available. The Company shall be entitled to exercise its right to suspend the availability of the registration statement for a period of not more than sixty (60) days in any three (3) month period, not to exceed in the aggregate ninety (90) days in any twelve (12) month period.
(c) Subject to subsections 1.3(a) and (b), prepare and file with the SEC so that such amendments and supplements to such registration statement and the Investor shall have prospectus used in connection with such registration statement as may be necessary to comply with the opportunity provisions of the Act with respect to comment thereon;the disposition of all securities covered by such registration statement.
(ed) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) Holders requesting registration such number numbers of copies of a prospectus, and all amendments and supplements thereto including a preliminary prospectus, in conformity with the requirements of the Act, and such other documents, documents as the Investor they may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Investor;them.
(f) As promptly as practicable after becoming aware thereof, notify the Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(ie) Use its commercially reasonable efforts to secure register and maintain qualify the designation of all the Registrable Securities securities covered by the Registration Statement on the Principal Trading Market and the quotation such registration statement under such other securities or Blue Sky laws of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may such jurisdictions as shall be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective requested by the SEC, Holders; provided that the Company shall delivernot be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions, unless the Company is already subject to service in such jurisdiction and shall cause legal counsel selected except as may be required by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration StatementAct.
Appears in 1 contract
Samples: Registration Rights Agreement (Digital Generation Systems Inc)
Obligations of the Company. In connection with the registration of the Registrable Securities, the Company shall do each of the following:
(a) Prepare promptly, and file with the SEC by the Required Filing Date, a Registration Statement with respect to not less than the number of Registrable Securities provided in Section 2(a) above, and thereafter and, thereafter, use its reasonable best all diligent efforts to cause such the Registration Statement relating to the Registrable Securities to become effective by the Required earlier of (i) five (5) business days after notice from the SEC that the Registration Statement may be declared effective, or (ii) the Effective Date Date, and keep the Registration Statement effective at all times, other than during Permitted Suspension Periods, during the period (the "Registration Period") continuing times until the earlier earliest of (iA) the date that is one year after the completion of the last Closing Date under the Equity Credit Agreement, (B) the date when the Investor Subscriber may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits limitations, or (iiC) the date the Investor Subscriber no longer own owns any of the Registrable SecuritiesSecurities (collectively, the "Registration Period"), which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in under which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period (except during Permitted Suspension Periods)Period, and, during the Registration Period, and comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all the expiration of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration StatementPeriod;
(c) Permit a single firm of counsel designated by the Investor (which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxx Xxxxxxx, Esq., which firm has requested to receive such notification; each, an "Investor's Counsel") Subscriber to review the Registration Statement and all amendments and supplements thereto a reasonable period of time (but not less than three (3) business days) prior to their filing with the SEC, and not file any document in a form to which such counsel reasonably objects, unless the Company reasonably determines it being understood that such document is required by law review and objections shall relate exclusively to be so filedmatters in the Registration Statement or omitted therefrom affecting any or all of the Equity Credit Agreement, Subscriber and the Registrable Securities or compliance with the terms of this Agreement or the other Transaction Documents;
(d) Notify Subscriber and Subscriber's legal counsel identified to the Investor and the InvestorCompany (which, until further notice, shall be deemed to be Kxxxxxx & Prager, LLP, ATTN: Sxxxxx Xxxxxxx, Esq.; "Subscriber's Counsel and any managing underwriters immediately Counsel") (and, in the case of (i)(A) below, not less than three five (35) business days prior to such filing) and (if requested by any such person) confirm such notice in writing no later than one (1) business day following the day (i)(Ai): (A) when a Prospectus prospectus or any Prospectus prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed; (B) whenever the SEC notifies the Company whether there will be a "review" of such Registration Statement; and (C) whenever the Company receives (or a representative of the Company receives on its behalf) any oral or written comments from the SEC in respect of a Registration Statement (copies or, in the case of oral comments, summaries of such comments shall be promptly furnished by the Company to the Investor); and (D) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus the prospectus or for additional information; (iii) 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 of any proceedings for that purpose; (iv) if at any time any of the representations or warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company 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 (vi) of the occurrence of any event that to the best knowledge of the Company 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 light of the circumstances under which they were made, not misleading. In addition, the Company shall furnish the Investor's Counsel with copies of all intended written responses to the comments contemplated in clause (C) of this Section 3(d) not later than one (1) business day in advance of the filing of such responses with the SEC so that the Investor shall have the opportunity to comment thereon;
(e) Furnish to the Investor and to Investor's Counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration Statement, each preliminary prospectus and prospectus, and each amendment or supplement thereto, and (ii) such number of copies of a prospectus, and all amendments and supplements thereto and such other documents, as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Investor;
(f) As promptly as practicable after becoming aware thereof, notify the Investor of the happening of any event of which the Company has knowledge, as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to Section 4(c), use its best efforts promptly to prepare a supplement or amendment to the Registration Statement or other appropriate filing with the SEC to correct such untrue statement or omission, and deliver a number of copies of such supplement or amendment to the Investor as the Investor may reasonably request;
(g) [intentionally omitted ]
(h) Comply with Regulation FD or any similar rule or regulation regarding the dissemination of information regarding the Company, and in furtherance of the foregoing, and not in limitation thereof, not disclose to the Investor any non-public material information regarding the Company;
(i) Use its reasonable efforts to secure and maintain the designation of all the Registrable Securities covered by the Registration Statement on the Principal Trading Market and the quotation of the Registrable Securities on the Principal Trading Market;
(j) Provide a transfer agent ("Transfer Agent") and registrar, which may be a single entity, for the Registrable Securities not later than the initial Effective Date;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of certificates for the Registrable Securities to be offered pursuant to the Registration Statement and enable such certificates for the Registrable Securities to be in such denominations or amounts as the case may be, as the Investor may reasonably request, and, within five (5) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the Transfer Agent for the Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such counsel, which shall include, without limitation, directions to the Transfer Agent to issue certificates of Registrable Securities (including certificates for Registrable Securities to be issued after the Effective Date and replacement certificates for Registrable Securities previously issued) without legends or other restrictions, subject to compliance with applicable law, including, without limitation, prospectus delivery requirements; and
(l) Take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of the Registrable Securities pursuant to the Registration Statement.
Appears in 1 contract
