Registration and Listing. The offer and issuance of the Securities to the Subscriber is being made pursuant to the exemptions from the registration provisions of the 1933 Act afforded by Section 4(2) and 4(6) of the 1933 Act and Rule 506 of Regulation D promulgated there under. The Company covenants and agrees with each Subscriber that on or before 30th day after (a) the date of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 or (b) the Closing Date, whichever is later (the “Filing Date”), the Company shall prepare and file with the Commission a Registration Statement covering the resale of the Conversion Shares and the Warrant Shares (the “Registrable Securities”) for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than 120 days from Closing Date, (the “Effective Date”). The Company shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) all Registrable Securities have been sold or (ii) all Registrable Securities may be sold immediately without registration under the Securities Act and without volume restrictions pursuant to Rule 144, 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 Holders. In the event that the Company (i) fails to file a Registration Statement covering the resale of the Registrable Securities, or such Registration Statement is not effective by the Effective Date, or (ii) thereafter fails to cause such Registration Statement to remain effective with respect to the Registrable Securities, as provided for above, the Company shall, at the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144. (i) If, unless due to a fault of a Subscriber (i) a Registration Statement is not filed on or prior to the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncured, the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject to the withdrawal of certain Registrable Securities from the Registration Statement, and the reason for (a) or (b) is the SEC’s determination that (x) the offering of any of the Registrable Securities constitutes a primary offering of securities by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required to pay any partial liquidated damages as described above. However, the Company agrees to make its best commercially reasonable efforts to file a registration statement with respect to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Event.
Appears in 3 contracts
Samples: Subscription Agreement (Harvco, LLC), Subscription Agreement (Jesup & Lamont, Inc.), Subscription Agreement (Jesup & Lamont, Inc.)
Registration and Listing. The offer and issuance of the Securities Company shall cause its Common Stock to the Subscriber is being made pursuant continue to the exemptions from the registration provisions of the 1933 Act afforded by Section 4(2be registered under Sections 12(b) and 4(6or 12(g) of the 1933 Exchange Act, to comply in all respects with its reporting and filing obligations under the Exchange Act, to comply with all requirements related to any registration statement filed pursuant to this Agreement, and to not take any action or file any document (whether or not permitted by the Securities Act or the rules promulgated thereunder) to terminate or suspend such registration or to terminate or suspend its reporting and Rule 506 of Regulation D promulgated there underfiling obligations under the Exchange Act or Securities Act, except as permitted herein. The Company covenants will take all action necessary to continue the listing or trading of its Common Stock on the Trading Market, and agrees with each Subscriber that on or before 30th day after (a) the date of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 or (b) as soon as reasonably practicable following the Closing Date, whichever is later (the “Filing Date”), the Company shall prepare and file with the Commission a Registration Statement covering the resale to list all of the Conversion Shares and the Warrant Shares (the “Registrable Securities”) for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3such Trading Market. The Company shall use its best commercially reasonable efforts further agrees, if the Company applies to have the Common Stock traded on any other Trading Market, it will include in such application all of the Conversion Shares and Warrant Shares, and will take such other action as is necessary to cause all of the Registration Statement Conversion Shares and Warrant Shares to become effective and remain effective be listed on such other Trading Market as provided hereinpromptly as possible. The Company shall use will take all action reasonably necessary to continue the listing and trading of its best commercially reasonable efforts to cause Common Stock on a Trading Market and will comply in all respects with the Registration Statement to be declared effective Company’s reporting, filing and other obligations under the Securities Act bylaws or rules of the Trading Market. Subject to the terms of the Transaction Documents, the Company further covenants that it will take such further action as promptly as possible after the filing thereofPurchasers may reasonably request, but in any event no later than 120 days all to the extent required from Closing Date, (time to time to enable the “Effective Date”). The Company shall use its best efforts Purchasers to keep the Registration Statement continuously effective under sell the Securities Act until the date which is the earlier date of when (i) all Registrable Securities have been sold or (ii) all Registrable Securities may be sold immediately without registration under the Securities Act and without volume restrictions pursuant to Rule 144, as determined by within 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 Holders. In the event that the Company (i) fails to file a Registration Statement covering the resale limitation of the Registrable Securities, or such Registration Statement is not effective exemptions provided by Rule 144 promulgated under the Effective Date, or (ii) thereafter fails to cause such Registration Statement to remain effective with respect to the Registrable Securities, as provided for above, the Company shall, at Securities Act. Upon the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144.
(i) If, unless due to a fault of a Subscriber (i) a Registration Statement is not filed on or prior to the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncuredPurchasers, the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject deliver to the withdrawal Purchasers a written certification of certain Registrable Securities from the Registration Statement, and the reason for (a) or (b) is the SEC’s determination that (x) the offering of any of the Registrable Securities constitutes a primary offering of securities by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named duly authorized officer as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning whether it has complied with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required to pay any partial liquidated damages as described above. However, the Company agrees to make its best commercially reasonable efforts to file a registration statement with respect to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion issuer requirements of a month prior to the cure of an EventRule 144.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Ambient Corp /Ny), Securities Purchase Agreement (Ambient Corp /Ny), Securities Purchase Agreement (Ambient Corp /Ny)
Registration and Listing. The offer and issuance of the Securities Company shall cause its Common Stock to the Subscriber is being made pursuant continue to the exemptions from the registration provisions of the 1933 Act afforded by Section 4(2be registered under Sections 12(b) and 4(6or 12(g) of the 1933 Act Exchange Act, to comply in all respects with its reporting and Rule 506 of Regulation D promulgated there under. The Company covenants and agrees filing obligations under the Exchange Act, to comply with each Subscriber that on or before 30th day after (a) the date of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 or (b) the Closing Date, whichever is later (the “Filing Date”), the Company shall prepare and file with the Commission a Registration Statement covering the resale of the Conversion Shares and the Warrant Shares (the “Registrable Securities”) for an offering all requirements related to be made on a continuous basis any registration statement filed pursuant to Rule 415. The Registration Statement shall be on Form S-3. The Company shall use this Agreement, and to not take any action or file any document (whether or not permitted by the Securities Act or the rules promulgated thereunder) to terminate or suspend such registration or to terminate or suspend its best commercially reasonable efforts to cause reporting and filing obligations under the Registration Statement to become effective and remain effective Exchange Act or Securities Act, except as provided permitted herein. The Company shall use will take all action necessary to continue the listing or trading of its best commercially reasonable efforts Common Stock on the OTC Bulletin Board or other exchange or market on which the Common Stock is trading. Subject to cause the Registration Statement terms of the Transaction Documents, the Company further covenants that it will take such further action as the Purchasers may reasonably request, all to be declared effective under the Securities Act as promptly as possible after extent required from time to time to enable the filing thereof, but in any event no later than 120 days from Closing Date, (Purchasers to sell the “Effective Date”). The Company shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) all Registrable Securities have been sold or (ii) all Registrable Securities may be sold immediately Shares without registration under the Securities Act and without volume restrictions pursuant to Rule 144, as determined by within 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 Holders. In the event that the Company (i) fails to file a Registration Statement covering the resale limitation of the Registrable Securities, or such Registration Statement is not effective exemptions provided by Rule 144 promulgated under the Effective Date, or (ii) thereafter fails to cause such Registration Statement to remain effective with respect to the Registrable Securities, as provided for above, the Company shall, at Securities Act. Upon the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144.
(i) If, unless due to a fault of a Subscriber (i) a Registration Statement is not filed on or prior to the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncuredPurchasers, the Company shall pay deliver to the Purchasers a written certification of a duly authorized officer as to whether it has complied with such requirements. Inspection Rights. The Company shall permit, during normal business hours and upon reasonable request and reasonable notice, each Subscriber an amount Purchaser or any employees, agents or representatives thereof, so long as such Purchaser shall be obligated hereunder to purchase the Preferred Shares or shall beneficially own any Preferred Shares, or shall own Conversion Shares which, in cashthe aggregate, as partial liquidated damages and not as a penalty, equal to 1.0represent more than 2% of the aggregate purchase price paid by total combined voting power of all voting securities then outstanding, for purposes reasonably related to such Subscriber pursuant Purchaser’s interests as a stockholder to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resaleexamine and make reasonable copies of and extracts from the records and books of account of, subject to an overall limit of partial liquidated damages in and visit and inspect the aggregate of 6% properties, assets, operations and business of the aggregate purchase price paid by such Subscriber provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at Company and any time before or after the Effectiveness Date, subject to the withdrawal of certain Registrable Securities from the Registration Statementsubsidiary, and to discuss the reason for (a) or (b) is affairs, finances and accounts of the SEC’s determination that (x) the offering of Company and any subsidiary with any of the Registrable Securities constitutes a primary offering of securities by the Companyits officers, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securitiesconsultants, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning with the Conversion Sharesdirectors, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required to pay any partial liquidated damages as described above. However, the Company agrees to make its best commercially reasonable efforts to file a registration statement with respect to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Eventkey employees.
Appears in 3 contracts
Samples: Convertible Preferred Stock Purchase Agreement (International American Technologies, Inc.), Convertible Preferred Stock Purchase Agreement (International American Technologies, Inc.), Convertible Preferred Stock Purchase Agreement (International American Technologies, Inc.)
Registration and Listing. The offer and issuance of the Securities to the Subscriber is being made pursuant to the exemptions from the registration provisions of the 1933 Act afforded by Section 4(2) and 4(6) of the 1933 Act and Rule 506 of Regulation D promulgated there under. The Company covenants and agrees with each Subscriber that on or before 30th day after (a) the date of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 or (b) the Closing Date, whichever is later (the “Filing Date”), the Company shall prepare and file with the Commission a Registration Statement covering the resale of the Conversion Shares and the Warrant Shares (the “Registrable Securities”) for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3. The Company shall use commercially reasonable efforts cause its best Common Stock to continue to be registered under Sections 12(b), 12(g) or 15(d) of the Exchange Act, to comply in all material respects with its reporting and filing obligations under the Exchange Act, to comply with all requirements related to any registration statement filed pursuant to this Agreement, and to not take any action or file any document (whether or not permitted by the Securities Act or the rules promulgated thereunder) to terminate or suspend such registration or to terminate or suspend its reporting and filing obligations under the Exchange Act or Securities Act, unless otherwise required by applicable law, regulation or rule. The Company will use commercially reasonable efforts to cause take all action reasonably necessary to continue the Registration Statement to become effective and remain effective listing, trading and/or quotation of its Common Stock on one or more of the OTC Bulletin Board, the OTC Markets Group, Pink Sheets, LLC, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange, or the New York Stock Exchange MKT, or any successor thereto as provided herein. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to case may be declared effective under the Securities Act as promptly as possible after the filing thereof(each, but in any event no later than 120 days from Closing Date, (the a “Effective DateTrading Market”). The Company shall use its best efforts further covenants that it will take such further reasonable action as the Purchaser may reasonably request from time to keep time to enable the Registration Statement continuously effective under Purchaser to sell the Securities Act until the date which is the earlier date of when (i) all Registrable Securities have been sold or (ii) all Registrable Securities may be sold immediately without registration under the Securities Act and without volume restrictions pursuant to the exemption provided by Rule 144144 promulgated under the Securities Act, as determined by the including, without limitation, promptly obtaining any required legal opinions from Company counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to at the Company’s transfer agent and the affected Holdersexpense. In the event that the Company (i) fails to file a Registration Statement covering the resale of the Registrable Securities, or such Registration Statement is not effective by the Effective Date, or (ii) thereafter fails to cause such Registration Statement to remain effective with respect to the Registrable Securities, as provided for above, the Company shall, at Upon the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144.
(i) If, unless due to a fault of a Subscriber (i) a Registration Statement is not filed on or prior to the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncuredPurchaser, the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject deliver to the withdrawal of certain Registrable Securities from the Registration Statement, and the reason for (a) or (b) is the SEC’s determination that (x) the offering of any of the Registrable Securities constitutes Purchaser a primary offering of securities by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required to pay any partial liquidated damages as described above. However, the Company agrees to make its best commercially reasonable efforts to file a registration statement with respect to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion written certification of a month prior duly authorized officer as to the cure of an Eventwhether it has complied with such requirements.
Appears in 2 contracts
Samples: Subscription Agreement (CorMedix Inc.), Subscription Agreement (CorMedix Inc.)
Registration and Listing. The offer and issuance of the Securities Company shall use commercially reasonable efforts to the Subscriber is being made pursuant (i) cause its Common Stock to the exemptions from the registration provisions of the 1933 Act afforded by Section 4(2continue to be registered under Sections 12(b) and 4(6or 12(g) of the 1933 Exchange Act, (ii) to comply in all respects with its reporting and filing obligations under the Exchange Act and Rule 506 of Regulation D any applicable Blue Sky Laws, and (iii) to not take any action or file any document (whether or not permitted by the Securities Act or the rules promulgated there underthereunder) to terminate or suspend such registration or to terminate or suspend its reporting and filing obligations under the Exchange Act or Securities Act, except as permitted herein. The Company covenants will use commercially reasonable efforts to continue the listing or trading of its Common Stock on the OTC Bulletin Board or any successor market. If the Company enters into a Qualified Financing (as defined below) and agrees grants registration rights with each Subscriber that on respect to the securities or before 30th day after (a) instruments issued to investors or other participants in the date of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 or (b) the Closing Date, whichever is later (the “Filing Date”)Qualified Financing, the Company shall prepare and file with the Commission a Registration Statement covering the resale of the Conversion Shares and the Warrant Shares (the “Registrable Securities”) for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than 120 days from Closing Date, (the “Effective Date”). The Company shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) all Registrable Securities have been sold or (ii) all Registrable Securities may be sold immediately without provide registration under the Securities Act and without volume restrictions pursuant to Rule 144, as determined by the counsel rights to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders. In the event that the Company (i) fails to file a Registration Statement covering the resale of the Registrable Securities, or such Registration Statement is not effective by the Effective Date, or (ii) thereafter fails to cause such Registration Statement to remain effective Purchasers with respect to the Registrable SecuritiesSecurities upon the same terms and conditions as those provided to the investors or other participants in the Qualified Financing. For purposes of this Section, as provided “Qualified Financing” means any equity financing providing for abovethe sale and issuance of any shares of Common Stock or securities convertible into Common Stock, the Company shall, at the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144.
except for (i) If, unless due to a fault the issuance of a Subscriber (i) a Registration Statement is not filed Common Stock upon the exercise or conversion of any Common Stock equivalent outstanding on or prior to the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by Closing Date in accordance with the Commission on or before the Effective Date, (any terms of such failure or breach being referred to Common Stock equivalents as an “Event,” and for purposes of clause (i) or such date; (ii) the grant of options to purchase Common Stock, with exercise prices not less than the closing price of the Common Stock on the date on of grant, which such Event occurs being referred are issued to as “Event Date”)employees, then officers, directors or consultants of the Company for the primary purpose of soliciting or retaining their employment or service, and the issuance of shares of Common Stock upon the exercise thereof; (iii) the issuance of securities in addition connection with strategic business partnerships or joint ventures, the primary purpose of which, in the reasonable judgment of the Board of Directors, is not to raise additional capital or (iv) the issuance of securities pursuant to any other rights equipment financing from a bank or similar financial or lending institution approved by the Subscribers may have hereunder or under applicable lawBoard of Directors. If, for all or part of each 30-calendar day period in which any Event remains uncuredprior to December 31, 2010, the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject to the withdrawal of certain Registrable Securities from the Registration Statement, and the reason for (a) or (b) is the SEC’s determination that (x) the offering of any of the Registrable Securities constitutes a primary offering of securities by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required to pay any partial liquidated damages as described above. However, the Company agrees to make its best commercially reasonable efforts proposes to file a registration statement under the Securities Act with respect to an offering (other than any Registrable Securities belonging registration statement relating solely to any an underwritten public offering or employee benefit plans or filed in connection with an exchange offer) of shares, then the Company shall in each case give written notice of such affected Subscriber proposed filing to the Purchasers as soon as practicable thereafter(but no later than ten (10) business days) before the anticipated filing date, and such notice shall offer each Purchaser the opportunity to register such number of shares of restricted stock as such Purchaser may request. The partial liquidated damages pursuant Each Purchaser desiring to have Securities included in such registration statement shall so advise the terms hereof shall apply Company in writing within five (5) business days after the date on a daily pro-rata basis which the Company’s notice is so given, setting forth the number of shares of Securities for any portion of a month prior to the cure of an Eventwhich registration is requested.
Appears in 2 contracts
Samples: Common Stock and Warrant Purchase Agreement (Echo Therapeutics, Inc.), Common Stock and Warrant Purchase Agreement (Echo Therapeutics, Inc.)
Registration and Listing. The offer and issuance of the Securities Company will cause its Common Stock to the Subscriber is being made pursuant continue to the exemptions from the registration provisions of the 1933 Act afforded by Section 4(2be registered under Sections 12(b) and 4(6or 12(g) of the 1933 Exchange Act, will comply in all respects with its reporting and filing obligations under the Exchange Act, will comply with all requirements related to any registration statement filed pursuant to this Agreement, and will not take any action or file any document (whether or not permitted by the Securities Act or the Exchange Act or the rules promulgated thereunder) to terminate or suspend such registration or to terminate or suspend its reporting and Rule 506 of Regulation D promulgated there underfiling obligations under the Exchange Act or Securities Act, until 30 days after the final Settlement Date for the Shares. The Company covenants will take all action necessary to continue the listing or trading of its Common Stock on the Principal Market and agrees will comply in all respects with each Subscriber the Company's reporting, filing and other obligations under the bylaws or rules of the Principal Market and shall provide the Purchaser with copies of any correspondence to or from such Principal Market which questions or threatens delisting of the Common Stock, within three (3) Trading Days of the Company's receipt thereof, until the Purchaser has disposed of all of the Shares. The Company will arrange, if necessary, for the qualification of the Common Stock for sale under the laws of such jurisdictions as the Purchaser may designate, will maintain such qualifications in effect so long as required for the distribution of the Common Stock and will pay any fees required by NASD Regulation, Inc., if any, in connection with its review of the offering, provided that, in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that on or before 30th day after would subject it to (a) the date service of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 process in suits, in any jurisdiction where it is not now so subject or (b) the Closing Date, whichever is later (the “Filing Date”), the Company shall prepare and file with the Commission a Registration Statement covering the resale of the Conversion Shares and the Warrant Shares (the “Registrable Securities”) for an offering subject it to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but taxation in any event no later than 120 days from Closing Date, (the “Effective Date”). The Company shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) all Registrable Securities have been sold or (ii) all Registrable Securities may be sold immediately without registration under the Securities Act and without volume restrictions pursuant to Rule 144, 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 Holders. In the event that the Company (i) fails to file a Registration Statement covering the resale of the Registrable Securities, or such Registration Statement is not effective by the Effective Date, or (ii) thereafter fails to cause such Registration Statement to remain effective with respect to the Registrable Securities, as provided for above, the Company shall, at the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144jurisdiction.
(i) If, unless due to a fault of a Subscriber (i) a Registration Statement is not filed on or prior to the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncured, the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject to the withdrawal of certain Registrable Securities from the Registration Statement, and the reason for (a) or (b) is the SEC’s determination that (x) the offering of any of the Registrable Securities constitutes a primary offering of securities by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required to pay any partial liquidated damages as described above. However, the Company agrees to make its best commercially reasonable efforts to file a registration statement with respect to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Event.
Appears in 2 contracts
Samples: Common Stock Purchase Agreement (Viragen Inc), Common Stock Purchase Agreement (Viragen Inc)
Registration and Listing. The offer and issuance of the Securities to the Subscriber is being made pursuant to the exemptions from the registration provisions of the 1933 Act afforded by Section 4(2) and 4(6) of the 1933 Act and Rule 506 of Regulation D promulgated there under. The Company covenants and agrees with each Subscriber that on or before 30th day after (a) the date of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 or (b) the Closing Date, whichever is later (the “Filing Date”), the The Company shall prepare and file with the Commission a Registration Statement covering the resale registration statement with respect to all of the Conversion Shares and all of the Warrant Shares (shares issued to the “Registrable Securities”) for an offering to be made on a continuous basis Investor, if any, pursuant to Rule 415. The Registration Statement shall be on Form S-3. The Company Sections 4.06 or 4.07, below (collectively, the "Registrable Shares") and shall use its best commercially reasonable efforts to cause the Registration Statement such registration statement to become effective and remain effective as provided hereinno later than June 30, 2003. The Company shall use its best commercially reasonable efforts keep such registration statement effective until the earlier to cause occur of (i) the Registration Statement expiration of the time period referred to be declared effective in Rule 144(k) under the Securities Act with respect to all beneficial holders of the Registrable Shares other than affiliates of the Company and (ii) such time as promptly as possible after all of the filing thereof, but in any event no later than 120 days from Closing Date, (the “Effective Date”). The Company shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) all Registrable Securities Shares have been sold or (ii) all Registrable Securities may be sold immediately are otherwise freely tradable without registration under the Securities Act Act.
(b) The Company shall prepare and without volume restrictions pursuant to Rule 144, as determined by file with the counsel to the Company pursuant to a written opinion letter Commission such amendments and supplements to such effect, addressed and acceptable to the Company’s transfer agent registration statement and the affected Holders. In prospectus used in connection with such registration statement as may be necessary to comply with the event that the Company (i) fails to file a Registration Statement covering the resale provisions of the Registrable Securities, or such Registration Statement is not effective by the Effective Date, or (ii) thereafter fails to cause such Registration Statement to remain effective Securities Act with respect to the disposition of all the Registrable Securities, as provided for above, the Company shall, at the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144Shares.
(ic) If, unless due The Company shall furnish to a fault the Investor such numbers of copies of a Subscriber (i) prospectus, including a Registration Statement is not filed on or prior to preliminary prospectus, in conformity with the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncured, the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% requirements of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject to the withdrawal of certain Registrable Securities from the Registration StatementAct, and such other documents as it may reasonably request in order to facilitate the reason for (a) or (b) is the SEC’s determination that (x) the offering of any disposition of the Registrable Securities constitutes a primary offering Shares.
(d) The Company shall use commercially reasonable efforts to register and qualify the securities covered by such registration statement under such other securities laws of securities such jurisdictions in the United States as shall be reasonably requested by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and Investor; PROVIDED THAT the Company shall not be required in connection therewith or as a condition thereto to pay qualify to do business, to subject itself to taxation in any partial liquidated damages such jurisdiction 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 described above. Howevermay be required by the Securities Act.
(e) In the event of any underwritten public offering, the Company agrees shall enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter of such offering. If the underwriter in such offering requests the delivery of a "comfort letter" from the Company's independent auditors or the delivery of an opinion of counsel to the Company, the costs of such comfort letter or opinion shall be borne by the Investor. The Investor shall also enter into and perform its obligations under such an agreement.
(f) The Company shall notify the Investor when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in 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 its best the statements therein not misleading in the light of the circumstances then existing.
(g) The Company shall use commercially reasonable efforts to file a cause all Registrable Shares to be listed on the American Stock Exchange not later than June 30, 2003.
(h) The Company shall perform all the necessary actions to register or qualify the securities covered by such registration statement with respect under such other securities or blue sky laws of such jurisdictions within the United States and Puerto Rico as the holder shall reasonably request, and perform all the necessary actions as may be required in such jurisdictions; provided, however, that the Company shall not be obligated to file any Registrable Securities belonging general consent to service of process or qualify as a foreign corporation in any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Eventjurisdiction.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Terremark Worldwide Inc), Stock Purchase Agreement (Terremark Worldwide Inc)
Registration and Listing. The offer and issuance of the Securities to the Subscriber is being made pursuant to the exemptions from the registration provisions of the 1933 Act afforded by Section 4(2) and 4(6) of the 1933 Act and Rule 506 of Regulation D promulgated there under. The Company covenants and agrees with each Subscriber that on or before 30th day after (a) the date of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 or (b) the Closing Date, whichever is later (the “Filing Date”), the The Company shall prepare and file with the Commission a Registration Statement covering the resale registration statement with respect to all of the Conversion Shares and any shares issued to the Warrant Shares Investor as result of dividends or stock splits (collectively, the “"Registrable Securities”Shares") for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3. The Company and shall use its best commercially reasonable efforts to cause the Registration Statement such registration statement to become effective and remain effective as provided hereinno later than December 31, 2003. The Company shall use its best commercially reasonable efforts keep such registration statement effective until the earlier to cause occur of (i) the Registration Statement expiration of the time period referred to be declared effective in Rule 144(k) under the Securities Act with respect to all beneficial holders of the Registrable Shares other than affiliates of the Company and (ii) such time as promptly as possible after all of the filing thereof, but in any event no later than 120 days from Closing Date, (the “Effective Date”). The Company shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) all Registrable Securities Shares have been sold or (ii) all Registrable Securities may be sold immediately are otherwise freely tradable without registration under the Securities Act Act.
(b) The Company shall prepare and without volume restrictions pursuant to Rule 144, as determined by file with the counsel to the Company pursuant to a written opinion letter Commission such amendments and supplements to such effect, addressed and acceptable to the Company’s transfer agent registration statement and the affected Holders. In prospectus used in connection with such registration statement as may be necessary to comply with the event that the Company (i) fails to file a Registration Statement covering the resale provisions of the Registrable Securities, or such Registration Statement is not effective by the Effective Date, or (ii) thereafter fails to cause such Registration Statement to remain effective Securities Act with respect to the disposition of all the Registrable Securities, as provided for above, the Company shall, at the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144Shares.
(ic) If, unless due The Company shall furnish to a fault the Investor such numbers of copies of a Subscriber (i) prospectus, including a Registration Statement is not filed on or prior to preliminary prospectus, in conformity with the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncured, the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% requirements of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject to the withdrawal of certain Registrable Securities from the Registration StatementAct, and such other documents as it may reasonably request in order to facilitate the reason for (a) or (b) is the SEC’s determination that (x) the offering of any disposition of the Registrable Securities constitutes a primary offering Shares.
(d) The Company shall use commercially reasonable efforts to register and qualify the securities covered by such registration statement under such other securities laws of securities such jurisdictions in the United States as shall be reasonably requested by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree Investor; provided that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required in connection therewith or as a condition thereto to pay qualify to do business, to subject itself to taxation in any partial liquidated damages such jurisdiction 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 described above. Howevermay be required by the Securities Act.
(e) In the event of any underwritten public offering, the Company agrees shall enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter of such offering. If the underwriter in such offering requests the delivery of a "comfort letter" from the Company's independent auditors or the delivery of an opinion of counsel to the Company, the costs of such comfort letter or opinion shall be borne by the Company. The Investor shall also enter into and perform its obligations under such an agreement.
(f) The Company shall notify the Investor when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in 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 its best the statements therein not misleading in the light of the circumstances then existing.
(g) The Company shall use commercially reasonable efforts to file a registration statement with respect cause all Registrable Shares to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to be listed on the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an EventAmerican Stock Exchange not later than December 31, 2003.
Appears in 2 contracts
Samples: Debt Satisfaction Agreement (Terremark Worldwide Inc), Debt Satisfaction Agreement (Terremark Worldwide Inc)
Registration and Listing. The offer and issuance of the Securities to the Subscriber is being made pursuant to the exemptions from the registration provisions of the 1933 Act afforded by Section 4(2) and 4(6) of the 1933 Act and Rule 506 of Regulation D promulgated there under. The Company covenants and agrees with each Subscriber that on or before 30th day after (a) the date of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 or (b) the Closing Date, whichever is later (the “Filing Date”), the Company shall prepare and file with the Commission a Registration Statement covering the resale of the Conversion Shares and the Warrant Shares (the “Registrable Securities”) for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than 120 days from Closing Date, (the “Effective Date”). The Company shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is Until the earlier date of when (i) all such time as the Lenders or their respective assigns no longer own Registrable Securities have been sold or (ii) the expiration of the Effectiveness Period, the Borrower will cause the Common Stock to continue to be registered under Section 12(g) of the Exchange Act, will comply in all respects, with its reporting and filing obligations under the Exchange Act, and will not take any action or file any document (whether or not permitted by the Exchange Act or the rules thereunder) to terminate or suspend such reporting and filing obligations. The Borrower shall take further action as any holder of Registrable Securities may be sold immediately reasonably request, all to the extent required from time to time to enable such holder to sell Registrable Securities without registration under the Securities Act and without volume restrictions pursuant to Rule 144, as determined within the limitation of the exemptions provided 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 Holders. In the event that the Company (i) fails Rule 144 under the Securities Act, as such rule may be amended from time to file a Registration Statement covering the resale of the Registrable Securities, or such Registration Statement is not effective by the Effective Datetime, or (ii) thereafter fails to cause such Registration Statement to remain effective with respect to any similar rule or regulation hereafter adopted by the Commission. Upon the request of any holder of Registrable Securities, the Borrower shall deliver to such holder a written statement as provided for above, to whether it has complied with such information and requirements. Until the Company shall, at the request earlier of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144.
(i) If, unless due to a fault of a Subscriber (i) a Registration Statement is not filed on such time as the Lenders or prior to the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) their respective assigns no longer own Registrable Securities or (ii) the date expiration of the Effectiveness Period, the Borrower shall use its reasonable business efforts to continue the listing or trading of the Common Stock on Nasdaq, the Nasdaq National Market or a principal exchange and comply in all respects with the Borrower's reporting, filing and other obligations under the bylaws or rules of Nasdaq and any exchange or market on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncured, the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% shares of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities Common Stock are then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject to the withdrawal of certain Registrable Securities from the Registration Statement, and the reason for (a) or (b) is the SEC’s determination that (x) the offering of any of the Registrable Securities constitutes a primary offering of securities by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required to pay any partial liquidated damages as described above. However, the Company agrees to make its best commercially reasonable efforts to file a registration statement with respect to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Eventtraded.
Appears in 2 contracts
Samples: Loan Agreement (Systemone Technologies Inc), Loan Agreement (Hanseatic Corp)
Registration and Listing. The offer and issuance of the Securities to the Subscriber is being made pursuant to the exemptions from the registration provisions of the 1933 Act afforded by Section 4(2) and 4(6) of the 1933 Act and Rule 506 of Regulation D promulgated there under. The Company covenants and agrees with each Subscriber that on or before 30th day after (a) the date of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 or (b) the Closing Date, whichever is later (the “Filing Date”), the The Company shall prepare and file with the Commission a Registration Statement covering the resale registration statement with respect to all of the Conversion Shares and any shares issued to the Warrant Shares Investor as result of dividends or stock splits (collectively, the “"Registrable Securities”Shares") for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3. The Company and shall use its best commercially reasonable efforts to cause the Registration Statement such registration statement to become effective and remain effective as provided hereinno later than December 31, 2003. The Company shall use its best commercially reasonable efforts keep such registration statement effective until the earlier to cause occur of (i) the Registration Statement expiration of the time period referred to be declared effective in Rule 144(k) under the Securities Act with respect to all beneficial holders of the Registrable Shares other than affiliates of the Company and (ii) such time as promptly as possible after all of the filing thereof, but in any event no later than 120 days from Closing Date, (the “Effective Date”). The Company shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) all Registrable Securities Shares have been sold or (ii) all Registrable Securities may be sold immediately are otherwise freely tradable without registration under the Securities Act Act.
(b) The Company shall prepare and without volume restrictions pursuant to Rule 144, as determined by file with the counsel to the Company pursuant to a written opinion letter Commission such amendments and supplements to such effect, addressed and acceptable to the Company’s transfer agent registration statement and the affected Holders. In prospectus used in connection with such registration statement as may be necessary to comply with the event that the Company (i) fails to file a Registration Statement covering the resale provisions of the Registrable Securities, or such Registration Statement is not effective by the Effective Date, or (ii) thereafter fails to cause such Registration Statement to remain effective Securities Act with respect to the disposition of all the Registrable Securities, as provided for above, the Company shall, at the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144Shares.
(ic) If, unless due The Company shall furnish to a fault the Investor such numbers of copies of a Subscriber (i) prospectus, including a Registration Statement is not filed on or prior to preliminary prospectus, in conformity with the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncured, the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% requirements of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject to the withdrawal of certain Registrable Securities from the Registration StatementAct, and such other documents as it may reasonably request in order to facilitate the reason for (a) or (b) is the SEC’s determination that (x) the offering of any disposition of the Registrable Securities constitutes a primary offering Shares.
(d) The Company shall use commercially reasonable efforts to register and qualify the securities covered by such registration statement under such other securities laws of securities such jurisdictions in the United States as shall be reasonably requested by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and Investor; PROVIDED THAT the Company shall not be required in connection therewith or as a condition thereto to pay qualify to do business, to subject itself to taxation in any partial liquidated damages such jurisdiction 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 described above. Howevermay be required by the Securities Act.
(e) In the event of any underwritten public offering, the Company agrees shall enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter of such offering. If the underwriter in such offering requests the delivery of a "comfort letter" from the Company's independent auditors or the delivery of an opinion of counsel to the Company, the costs of such comfort letter or opinion shall be borne by the Company. The Investor shall also enter into and perform its obligations under such an agreement.
(f) The Company shall notify the Investor when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in 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 its best the statements therein not misleading in the light of the circumstances then existing.
(g) The Company shall use commercially reasonable efforts to file a registration statement with respect cause all Registrable Shares to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to be listed on the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an EventAmerican Stock Exchange not later than December 31, 2003.
Appears in 2 contracts
Samples: Debt Satisfaction Agreement (Terremark Worldwide Inc), Debt Satisfaction Agreement (Terremark Worldwide Inc)
Registration and Listing. The offer and (a) If the Board determines that it is necessary for the Company to file a registration statement in order for the Warrants or the Common Shares issuable upon exercise of the Warrants to be freely transferable, then no later than 90 days from the issuance of the Securities Warrants, the Company agrees to the Subscriber is being made use commercially reasonable efforts to cause to be filed pursuant to the exemptions from the Securities Act a registration provisions of the 1933 Act afforded by Section 4(2) and 4(6) of the 1933 Act and Rule 506 of Regulation D promulgated there under. The Company covenants and agrees with each Subscriber that on or before 30th day after (a) the date of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 or (b) the Closing Date, whichever is later (the “Filing Date”), the Company shall prepare and file with the Commission a Registration Statement statement covering the resale of the Conversion Shares Warrants and the Warrant such Common Shares (the “Registrable SecuritiesShelf Registration Statement”) for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3). The Company shall agrees to use its best commercially reasonable efforts to cause the Shelf Registration Statement to become effective thereafter and to remain effective as provided herein. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than 120 days from Closing Date, (the “Effective Date”). The Company shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) such time as all Registrable Securities Warrants and such Common Shares have been sold or exercised, (ii) all Registrable Securities may be sold immediately without registration under such time as the Securities Act Warrants and without volume restrictions such Common Shares are freely transferable pursuant to Rule 144, as determined by and (iii) the counsel to Expiration Date. The Company shall promptly inform the Company pursuant to a written opinion letter to such effect, addressed and acceptable to Warrant Agent of any change in the Company’s transfer agent and the affected Holders. In the event that the Company (i) fails to file a Registration Statement covering the resale status of the Registrable Securities, effectiveness or such availability of the Shelf Registration Statement is not effective by the Effective Date, or (ii) thereafter fails to cause such Registration Statement to remain effective with respect to the Registrable Securities, as provided for above, the Company shall, at the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144Statement.
(ib) If, unless due to a fault of a Subscriber (i) a Registration Statement is not filed on or prior to the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to Notwithstanding any other rights the Subscribers may have hereunder or under applicable lawprovision of this Agreement, for all or part of each 30-calendar day period in which any Event remains uncured, the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject to the withdrawal of certain Registrable Securities from the Registration Statement, and the reason for (a) or (b) is the SEC’s determination that (x) the offering of any of the Registrable Securities constitutes a primary offering of securities by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required to pay file a registration statement (or any partial liquidated damages amendment thereto) or, if the Company has filed a Shelf Registration Statement, the Company shall be entitled to suspend the offer and sale of Warrants or the Common Shares issuable upon exercise of the Warrants pursuant to such Shelf Registration Statement for a period of up to 60 days, (i) if the Board determines that such postponement or suspension, as described aboveapplicable, is in the best interest of the Company due to a pending transaction involving the Company (including a pending securities offering by the Company), (ii) if the Board determines such registration would render the Company unable to comply with applicable securities laws, (iii) if the Board determines such registration would require disclosure of material information that the Company has a bona fide business purpose for preserving as confidential, (iv) upon issuance by the SEC of a stop order suspending the effectiveness of such Shelf Registration Statement or upon the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of the Warrants or the Common Shares issuable upon exercise of the Warrants for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, (v) if the Company elects at such time to offer any equity securities of the Company to (A) fund a merger, third-party tender offer or other business combination, acquisition of assets or similar transaction or (B) meet rating agency and other capital funding requirements, (vi) if the Company is pursuing a primary underwritten offering of equity securities pursuant to a registration statement or a private placements of its equity securities or equity-linked securities, (vii) upon the occurrence of any event or any passage of time that makes any statement made in such Shelf Registration Statement (or any related Prospectus) untrue in any material respect or that requires any revisions thereto so that 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, or (viii) if any other material development would materially and adversely interfere with the use of such Shelf Registration Statement (any such period, a “Blackout Period”); provided, however, that in no event shall such Blackout Periods collectively exceed an aggregate of 120 days in any 12-month period. HoweverEach Beneficial Owner of Warrants agrees, that upon receipt of a notice from the Company of a Blackout Period, such Beneficial Owner shall forthwith discontinue disposition of Warrants under the Shelf Registration Statement until the Company confirms the expiration thereof. The Company may provide appropriate stop orders to enforce such restrictions.
(c) All expenses incident to the Company’s performance of or compliance with its obligations under this Section 5.05 will be borne by the Company, including without limitation: (i) all SEC, stock exchange or Financial Industry Regulatory Authority registration and filing fees, (ii) all expenses of any Persons incurred by or on behalf of the Company in preparing or assisting in preparing, printing and distributing the Shelf Registration Statement or any other registration statement, prospectus, any amendments or supplements thereto and other documents relating to the performance of and compliance with this Section 5.05, (iv) the fees and disbursements of counsel for the Company and the Warrant Agent as agreed and (v) any fees and disbursements of the independent public accountants of the Company incident to such performance and compliance.
(d) The Company will notify such Beneficial Owners who are included in a Shelf Registration Statement as promptly as reasonably practicable: (i)(A) when Prospectus or any prospectus supplement or post-effective amendment to a Shelf Registration Statement in which such Beneficial Owner is included has been filed; (B) when the SEC notifies the Company whether there will be a review of the applicable Shelf Registration Statement and whenever the SEC comments in writing on such Shelf Registration Statement (in which case the Company shall provide true and complete copies thereof and all written responses thereto to each of such Beneficial Owners that pertain to such Beneficial Owners as selling stockholders); and (C) with respect to each applicable Shelf Registration Statement or any post-effective amendment thereto, when the same has been declared effective; (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to such Shelf Registration Statement or Prospectus or for additional information that pertains to such Beneficial Owners as sellers of the Warrants or the Common Shares issuable upon exercise of the Warrants; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of such Shelf Registration Statement covering any or all of the Warrants or the Common Shares issuable upon exercise of the Warrants or the initiation of any proceedings for that purpose; (iv) 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 Warrants or the Common Shares issuable upon exercise of the Warrants for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose; and (v) of the occurrence of any event or passage of time that makes any statement made in such Shelf 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 such Shelf Registration Statement, Prospectus or other documents so that, in the case of such Shelf 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 (provided, however, that no notice by the Company shall be required pursuant to this clause (v) in the event that the Company either promptly files a prospectus supplement to update the Prospectus or a Form 8-K or other appropriate Exchange Act report that is incorporated by reference into the Shelf Registration Statement, which in either case, contains the requisite information that results in such Shelf Registration Statement no longer containing any untrue statement of material fact or omitting to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading).
(e) The right of any Beneficial Owner to include their Warrants or the Common Shares issuable upon exercise of the Warrants in a Shelf Registration Statement or any Prospectus or prospectus supplement shall be conditioned upon the Beneficial Owner furnishing to the Company such information the Company deems is reasonably necessary for any Shelf Registration Statement or any Prospectus or prospectus supplement including, without limitation, the completion and execution of all questionnaires, powers of attorney, indemnities, underwriter lock-up agreements (if requested by the Company) and other documents and information regarding the distribution of their Warrants or the Common Shares issuable upon exercise of the of the Warrants, and if any Holder does not do so after prompt written request by the Company, then the Company will not be required to register any shares of Common Shares of the Beneficial Owner in a Shelf Registration Statement.
(f) Following the Shelf Registration Statement being declared effective by the SEC, if the Board determines that it is in the best interests of the Company for the Warrants or the Common Shares issuable upon exercise of the Warrants to be listed on a national securities exchange, the Company agrees to make use its best commercially reasonable efforts to file a registration statement with respect to any Registrable Securities belonging to any list the Warrants on the stock exchange on which the Company’s Common Shares are then listed or such affected Subscriber other national securities exchange as the Board may select as soon as commercially practicable thereafter. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Event.
Appears in 1 contract
Registration and Listing. The offer and issuance of (a) So long as a WP Purchaser Beneficially Owns any Securities, the Securities Company will cause the Common Stock to the Subscriber is being made pursuant continue at all times to the exemptions from the registration provisions of the 1933 Act afforded by be registered under Section 4(2) and 4(612(g) of the 1933 Exchange Act, will comply in all respects with its reporting and filing obligations under the Exchange Act, and will not take any action or file any document (whether or not permitted by the Exchange Act or the rules thereunder) to terminate or suspend such reporting and Rule 506 of Regulation D promulgated there under. The Company covenants and agrees with each Subscriber that on or before 30th day after (a) the date of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 or obligations.
(b) the Closing Date, whichever is later (the “Filing Date”), the The Company shall prepare use reasonable best efforts (i) to qualify to list its shares of Common Stock on an Approved Market as promptly as practicable following the date hereof; (ii) subject to the qualification for listing set forth in clause (i) hereof, and file so long as the WP Purchasers Beneficially Own any Securities, to continue the listing or trading of the Common Stock on an Approved Market and to comply in all respects with the Commission a Registration Statement covering Company’s reporting, filing and other obligations under the resale bylaws or rules of the Approved Market on which the Common Stock is listed for trading; (iii) subject to the qualification for listing set forth in clause (i) hereof, and so long as the WP Purchasers Beneficially Own any Securities, to cause the Conversion Shares to be approved for listing and listed, as applicable, on the Approved Market on which the Common Stock is listed for trading. Notwithstanding the foregoing, in no event shall the Company take any action in furtherance of this Section 5.11(b) that is inconsistent with or in conflict with its other obligations pursuant to this Agreement and the Warrant Shares (Transaction Documents without the “Registrable Securities”) for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3prior written consent of the WP Purchasers. The Company shall use pay all fees and expenses in connection with satisfying its best commercially reasonable efforts to cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to be declared effective obligations under the Securities Act as promptly as possible after the filing thereof, but in any event no later than 120 days from Closing Date, (the “Effective Date”). The Company shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) all Registrable Securities have been sold or (ii) all Registrable Securities may be sold immediately without registration under the Securities Act and without volume restrictions pursuant to Rule 144, 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 Holders. In the event that the Company (i) fails to file a Registration Statement covering the resale of the Registrable Securities, or such Registration Statement is not effective by the Effective Date, or (ii) thereafter fails to cause such Registration Statement to remain effective with respect to the Registrable Securities, as provided for above, the Company shall, at the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144this Section 5.11.
(i) If, unless due to a fault of a Subscriber (i) a Registration Statement is not filed on or prior to the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncured, the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject to the withdrawal of certain Registrable Securities from the Registration Statement, and the reason for (a) or (b) is the SEC’s determination that (x) the offering of any of the Registrable Securities constitutes a primary offering of securities by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required to pay any partial liquidated damages as described above. However, the Company agrees to make its best commercially reasonable efforts to file a registration statement with respect to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Event.
Appears in 1 contract
Registration and Listing. The offer and issuance of (a) So long as a WP Purchaser Beneficially Owns any Securities, the Securities Company will cause the Common Stock to the Subscriber is being made pursuant continue at all times to the exemptions from the registration provisions of the 1933 Act afforded by be registered under Section 4(2) and 4(612(g) of the 1933 Exchange Act, will comply in all respects with its reporting and filing obligations under the Exchange Act, and will not take any action or file any document (whether or not permitted by the Exchange Act or the rules thereunder) to terminate or suspend such reporting and Rule 506 of Regulation D promulgated there under. The Company covenants and agrees with each Subscriber that on or before 30th day after (a) the date of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 or obligations.
(b) the Closing Date, whichever is later (the “Filing Date”), the The Company shall prepare use reasonable best efforts (i) to qualify to list its shares of Common Stock on an Approved Market as promptly as practicable following the date hereof; (ii) subject to the qualification for listing set forth in clause (i) hereof, and file so long as the WP Purchasers Beneficially Own any Securities, to continue the listing or trading of the Common Stock on an Approved Market and to comply in all respects with the Commission a Registration Statement covering Company’s reporting, filing and other obligations under the resale bylaws or rules of the Approved Market on which the Common Stock is listed for trading; (iii) subject to the qualification for listing set forth in clause (i) hereof, and so long as the WP Purchasers Beneficially Own any Securities, to cause the Conversion Shares to be approved for listing and listed, as applicable, on the Approved Market on which the Common Stock is listed for trading. Notwithstanding the foregoing, in no event shall the Company take any action in furtherance of this Section 5.7(b) that is inconsistent with or in conflict with its other obligations pursuant to this Agreement and the Warrant Shares (Transaction Documents without the “Registrable Securities”) for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3prior written consent of the WP Purchasers. The Company shall use pay all fees and expenses in connection with satisfying its best commercially reasonable efforts to cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to be declared effective obligations under the Securities Act as promptly as possible after the filing thereof, but in any event no later than 120 days from Closing Date, (the “Effective Date”). The Company shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) all Registrable Securities have been sold or (ii) all Registrable Securities may be sold immediately without registration under the Securities Act and without volume restrictions pursuant to Rule 144, 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 Holders. In the event that the Company (i) fails to file a Registration Statement covering the resale of the Registrable Securities, or such Registration Statement is not effective by the Effective Date, or (ii) thereafter fails to cause such Registration Statement to remain effective with respect to the Registrable Securities, as provided for above, the Company shall, at the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144this Section 5.7.
(i) If, unless due to a fault of a Subscriber (i) a Registration Statement is not filed on or prior to the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncured, the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject to the withdrawal of certain Registrable Securities from the Registration Statement, and the reason for (a) or (b) is the SEC’s determination that (x) the offering of any of the Registrable Securities constitutes a primary offering of securities by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required to pay any partial liquidated damages as described above. However, the Company agrees to make its best commercially reasonable efforts to file a registration statement with respect to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Event.
Appears in 1 contract
Registration and Listing. The offer and issuance of Promptly following the Securities to the Subscriber is being made pursuant to the exemptions from the registration provisions of the 1933 Act afforded by Section 4(2) and 4(6) of the 1933 Act and Rule 506 of Regulation D promulgated there under. The Company covenants and agrees with each Subscriber that on or before 30th day after (a) the date of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 or (b) the Closing Date, whichever is later (the “Filing Date”)Closing, the Company shall prepare Corporation will:
7.7.1. Prepare and file with the Commission a Registration Statement covering registration statement on Form S-1 and/or in any other form required with respect to the resale of the Conversion Shares and the Warrant Shares (the “Registrable Securities”) for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than 120 days from Closing Date, (the “Effective Date”). The Company shall use its best efforts to cause such registration statement to become effective as soon as practicable after such filing and to remain effective for the period of distribution contemplated by the Investor;
7.7.2. Prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for the Registration Statement continuously period specified in clause 7.
7.1. and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until such time as the Shares registered thereunder have been disposed of in accordance with the intended methods of disposition by the Investor set forth in such registration statement;
7.7.3. Furnish to the Investor such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus) and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Shares owned by the Investor;
7.7.4. Use its best efforts to register or qualify such Shares under such other securities laws of such jurisdictions as the Investor reasonably requests and do any and all other acts and things which may be necessary or desirable to enable the Investor to consummate the public sale or other disposition in such jurisdictions of the Shares;
7.7.5. Cause all such Shares to be listed on each securities exchange on which similar securities issued by the Corporation are then listed, or if no similar securities issued by the Corporation are then listed on a securities exchange, a securities exchange (including without limitation the Nasdaq National Market, Inc.) selected by the Corporation and reasonably acceptable to the Investor;
7.7.6. Provide a transfer agent and registrar for all such Shares not later than the effective date of such registration statement;
7.7.7. Enter into such customary agreements (including underwriting agreements) and take all such other actions as the Investor or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Shares;
7.7.8. Make available for inspection by the Investor, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant or other agent designated by any the Investor or underwriter, all financial and other records, pertinent corporate documents and properties of the Corporation, and cause the Corporation's officers, directors, employees and independent accountants to supply all information reasonably requested by the Investor, underwriter, attorney, accountant or agent in connection with such registration statement;
7.7.9. Notify the Investor, promptly after it shall receive notice thereof, of the time when such registration statement has become effective or a supplement to any prospectus forming a part of such registration statement has been filed;
7.7.10. Notify the Investor of any request by the Commission for the amending or supplementing of such registration statement or prospectus or for additional information;
7.7.11. Prepare and file with the Commission, promptly upon the request of the Investor, any amendments or supplements to such registration statement or prospectus which, in the opinion of counsel to the Investor, is required under the Securities Act until or the rules and regulations thereunder in connection with the distribution of Shares;
7.7.12. Prepare and promptly file with the Commission and promptly notify the Investor of the filing of such amendment or supplement to such registration statement or prospectus as may be necessary to correct any statements or omissions if, at the time when a prospectus relating to such securities is required to be delivered under the Securities Act, any event shall have occurred as the result of which any such prospectus or any other prospectus as then in effect would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading;
7.7.13. Advise the Investor, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such registration statement or the initiation or threatening of any proceeding for such purpose and promptly use all reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
7.7.14. At least forty-eight hours prior to the filing of any registration statement or prospectus or any amendment or supplement to such registration statement or prospectus, furnish a copy thereof to the Investor;
7.7.15. Refrain from filing any such registration statement, prospectus, amendment or supplement to which counsel to the Investor shall have reasonably objected on the grounds that such amendment or supplement does not comply in all material respects with the requirements of the Securities Act or the rules and regulations thereunder, unless, in the case of an amendment or supplement, in the opinion of counsel for the Corporation the filing of such amendment or supplement is reasonably necessary to protect the Corporation from any liabilities under any applicable federal or state law and such filing will not violate applicable laws; and
7.7.16. At the request of the Investor in connection with an underwritten offering, furnish on the date which is or dates provided for in the earlier date of when underwriting agreement: (i) all Registrable Securities have been sold or an opinion of counsel, addressed to the underwriters and the Investor, in form and substance satisfactory to such underwriters and the Investor, and (ii) all Registrable Securities may be sold immediately a letter or letters from the independent certified public accountants of the Corporation, addressed to the underwriters and the Investor, in form and substance satisfactory to such underwriters and the Investor, in which letters such accountants shall state, without registration under limiting the generality of the foregoing, that they are independent certified public accountants within the meaning of the Securities Act and without volume restrictions pursuant to Rule 144, as determined by that in the counsel to opinion of such accountants the Company pursuant to a written opinion letter to such effect, addressed financial statements and acceptable to the Company’s transfer agent and the affected Holders. In the event that the Company (i) fails to file a Registration Statement covering the resale other financial data of the Registrable SecuritiesCorporation included in the registration statement, the prospectus, or such Registration Statement is not effective by any amendment or supplement thereto comply in all material respects with the Effective Date, or (ii) thereafter fails to cause such Registration Statement to remain effective with respect to the Registrable Securities, as provided for above, the Company shall, at the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144.
(i) If, unless due to a fault of a Subscriber (i) a Registration Statement is not filed on or prior to the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncured, the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% accounting requirements of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject to the withdrawal of certain Registrable Securities from the Registration Statement, and the reason for (a) or (b) is the SEC’s determination that (x) the offering of any of the Registrable Securities constitutes a primary offering of securities by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required to pay any partial liquidated damages as described above. However, the Company agrees to make its best commercially reasonable efforts to file a registration statement with respect to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an EventAct.
Appears in 1 contract
Samples: Stock Purchase Agreement (E Auction Global Trading Inc)
Registration and Listing. The offer and issuance of the Securities to the Subscriber is being made pursuant to the exemptions from the registration provisions of the 1933 Act afforded by Section 4(2(a) and 4(6) of the 1933 Act and Rule 506 of Regulation D promulgated there under. The Company covenants and agrees with each Subscriber that on or before 30th day after (a) the date of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 or (b) the Closing Date, whichever is later 2007 (the “Filing Date”), the Company shall prepare and file with the Commission a Registration Statement covering the resale shares of common stock issuable under this Agreement and issuable upon exercise of the Conversion Shares and the Warrant Shares Warrants (the “Registrable Securities”) for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than 120 days from Closing Date, 2007 (the “Effective Date”). The Company shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) all Registrable Securities have been sold or (ii) all Registrable Securities may be sold immediately without registration under the Securities Act and without volume restrictions pursuant to Rule 144144(k), as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s 's transfer agent and the affected Holders. In the event that the Company (i) fails to file a Registration Statement covering the resale of the Registrable Securities, or such Registration Statement is not effective by the Effective Date, or (ii) thereafter fails to cause such Registration Statement to remain effective with respect to the Registrable Securities, as provided for above, the Company shall, at the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144.
(ib) If, unless due to a fault of a Subscriber (i) a Registration Statement is not filed on or prior to the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Effectiveness Date, (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any such applicable Event remains uncured, the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resaleSubscriber, subject to an overall limit of partial liquidated damages in the aggregate of 610% of the aggregate purchase price paid by such Subscriber Subscriber; provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject to the withdrawal of certain Registrable Securities from the Registration Statement, and the reason for (a) or (b) is the SEC’s determination that (x) the offering of any of the Registrable Securities constitutes a primary offering of securities by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning with the Conversion Warrant Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required to pay any partial liquidated damages as described above. However, the Company agrees to make its best commercially reasonable efforts to file a registration statement with respect to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Event.
Appears in 1 contract
Samples: Subscription Agreement (Empire Financial Holding Co)
Registration and Listing. The offer Unless the Company obtains written consent of Purchasers holding Preferred Stock representing more than fifty percent (50%) of all Preferred Stock and issuance so long as a Purchaser beneficially owns any of the Securities to the Subscriber is being made pursuant to the exemptions from the registration provisions of the 1933 Act afforded by Section 4(2) and 4(6) of the 1933 Act and Rule 506 of Regulation D promulgated there under. The Company covenants and agrees with each Subscriber that on or before 30th day after (a) the date of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 or (b) the Closing Date, whichever is later (the “Filing Date”)Preferred Stock, the Company shall prepare and file with the Commission a Registration Statement covering the resale of the Conversion Shares and the Warrant Shares (the “Registrable Securities”a) for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than 120 days from Closing Date, (the “Effective Date”). The Company shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when either (i) all Registrable Securities have been sold cause its Common Stock to continue to be registered under Section 12(b) or 12(g) of the Exchange Act, or (ii) continue to voluntarily file all Registrable reports required to be filed as if the Company were so registered, and in any event shall comply in all respects with its reporting and filing obligations under the Exchange Act, (b) comply with all requirements related to any registration statement filed pursuant to this Agreement, and (c) not take any action or file any document (whether or not permitted by the Securities Act or the rules promulgated thereunder) to terminate or suspend such registration or to terminate or suspend its reporting and filing obligations under the Exchange Act or Securities Act, except as permitted herein. Subject to the terms of the Transaction Documents, the Company further covenants that it will take such further action as the Purchasers may be sold immediately reasonably request, all to the extent required from time to time, to enable the Purchasers to sell the Common Stock of the Company issuable upon exercise or conversion of the Preferred Stock and/or the Warrants without registration under the Securities Act and without volume restrictions pursuant to within the limitation of the exemptions provided by Rule 144, as determined by the counsel to unless the Company pursuant to obtains written consent of Purchasers holding Preferred Stock representing more than fifty percent (50%) of all Preferred Stock and so long as a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders. In the event that the Company (i) fails to file a Registration Statement covering the resale Purchaser beneficially owns any of the Registrable Securities, or such Registration Statement is not effective by the Effective Date, or (ii) thereafter fails to cause such Registration Statement to remain effective with respect to the Registrable Securities, as provided for above, the Company shall, at Preferred Stock. Upon the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144.
(i) If, unless due to a fault of a Subscriber (i) a Registration Statement is not filed on or prior to the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncuredPurchasers, the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject deliver to the withdrawal of certain Registrable Securities from the Registration Statement, and the reason for (a) or (b) is the SEC’s determination that (x) the offering of any of the Registrable Securities constitutes Purchasers a primary offering of securities by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required to pay any partial liquidated damages as described above. However, the Company agrees to make its best commercially reasonable efforts to file a registration statement with respect to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion written certification of a month prior duly authorized officer as to the cure of an Eventwhether it has complied with such requirements.
Appears in 1 contract
Registration and Listing. The offer and issuance of the Securities to the Subscriber is being made pursuant to the exemptions from the registration provisions of the 1933 Act afforded by Section 4(2) and 4(6) of the 1933 Act and Rule 506 of Regulation D promulgated there under. The Company covenants and agrees with each Subscriber that on or before 30th day after (a) Subject to Section 3.04, each of Chugai and Gen-Probe shall cooperate in preparing, and Gen-Probe shall file, at such time as Chugai shall specify, such amendments or supplements to the date Registration Statement, as may be necessary in order to reflect any amendments, supplements or modifications of this Agreement pursuant to Section 10.13 or to cause the same to become and remain effective as required by law, including filing with such amendments or supplements to the Registration Statement as may be required by the Commission its Annual Report on Form 10or Federal, state or foreign securities laws. Promptly following the Distribution, Gen-KSB for the year 2007 or (b) the Closing Date, whichever is later (the “Filing Date”), the Company Probe shall prepare and file with the Commission a Registration Statement covering the resale of the Conversion Shares and the Warrant Shares (the “Registrable Securities”) for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be registration statement on Form S-3. The Company shall use its best commercially reasonable efforts S-8 to cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to be declared effective register shares of Gen-Probe Common Stock issuable upon exercise of options granted under the Securities Act Gen-Probe Option Plan and such other registration statements as promptly as possible after the filing thereof, but in any event no later than 120 days from Closing Date, (the “Effective Date”). The Company shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) all Registrable Securities have been sold or (ii) all Registrable Securities may be sold immediately without registration under the Securities Act and without volume restrictions pursuant to Rule 144, 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 Holders. In the event that the Company (i) fails to file a Registration Statement covering the resale of the Registrable Securities, or such Registration Statement is not effective by the Effective Date, or (ii) thereafter fails to cause such Registration Statement to remain effective required with respect to the Registrable Securities, as provided for above, the Company shall, at the request other employee benefit plans of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144Gen-Probe.
(ib) If, unless due to a fault of a Subscriber (i) a Registration Statement is not filed on or prior Gen-Probe shall participate in such presentations to the Filing Datefinancial community, Chugai's shareholders and potential Gen-Probe shareholders as Chugai's financial advisors shall deem necessary or desirable. Gen-Probe shall have the right to retain its own financial advisors to participate in such presentations, provided that (iix) a Registration such financial advisors are acceptable to Chugai and (y) all fees of such separate financial advisors shall be paid by Gen-Probe.
(c) Chugai and Gen-Probe shall prepare and furnish to the holders of Chugai Common Stock the Information Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (and any such failure or breach being referred other materials as may be required by law, in each case at such times as is determined by Chugai. Chugai and Gen-Probe shall prepare, and Gen-Probe shall, to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or extent required under applicable law, for file with the Commission any such documentation and any requisite no action letters which Chugai determines, in its sole and absolute discretion, are necessary or desirable to effectuate the Distribution, and Chugai and Gen-Probe shall each use its reasonable efforts to obtain all necessary approvals from the Commission with respect thereto as soon as practicable.
(d) Chugai and Gen-Probe shall take all such action as may be necessary or part of each 30-calendar day period in which any Event remains uncured, appropriate under the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% securities or blue sky laws of the aggregate purchase price paid by such Subscriber pursuant United States (and any comparable laws under any foreign jurisdiction) in connection with the Distribution.
(e) Chugai and Gen-Probe shall cooperate and take all reasonable steps necessary and appropriate to this Subscription Agreement cause the conditions set forth in Section 3.05 (subject to Section 3.04 and Section 3.05(a)(vii)) to be satisfied and to effect the Distribution on the Distribution Date.
(f) Gen-Probe shall prepare and file, and shall use its reasonable efforts to have approved, an application for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resalethe quotation and trading of the Gen-Probe Common Stock to be distributed in the Distribution on the NASDAQ, subject to an overall limit official notice of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber provideddistribution.
(g) Gen-Probe shall pay all third party costs, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject fees and expenses relating to the withdrawal costs of certain Registrable Securities from the Registration Statementproducing, printing, mailing and the reason for (a) or (b) is the SEC’s determination that (x) the offering of any of the Registrable Securities constitutes a primary offering of securities by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning with the Conversion Shares, and the failure to include such Registrable Securities in otherwise distributing any Registration Statement shall not constitute an Event and Information Statement and otherwise in respect of the Company shall not be required to pay any partial liquidated damages as matters described above. Howeverin Sections 3.01(a), the Company agrees to make its best commercially reasonable efforts to file a registration statement with respect to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Event(c), (d) and (f).
Appears in 1 contract
Samples: Separation and Distribution Agreement (Gen Probe Inc)
Registration and Listing. The offer (a) Subject to Section 2.8(b), the Company agrees to use commercially reasonable efforts to keep a registration statement and related prospectus (or multiple registration statements) that complies as to form and substance in all material respects with applicable SEC rules providing for the issuance of the Securities maximum number of shares of Common Stock that could be issued with respect to the Subscriber is being made pursuant CVRs continuously effective (including the preparation and filing of any amendments and supplements necessary for that purpose) during any period that could reasonably be expected to include a CVR Maturity Date until the exemptions from the registration provisions earlier of the 1933 Act afforded by Section 4(2) date and 4(6) of the 1933 Act and Rule 506 of Regulation D promulgated there under. The Company covenants and agrees with each Subscriber that on or before 30th day after (a) the date of filing time at which all Preferred Returns have been paid in full to all Qualifying CVR Holders in accordance with the Commission its Annual Report on Form 10-KSB for terms of this Agreement or the year 2007 or Company determines that no Preferred Returns are issuable with respect to all outstanding CVRs.
(b) Notwithstanding the Closing Date, whichever is later (the “Filing Date”provisions of Section 2.8(a), the Company shall prepare be entitled to postpone the effectiveness of any registration statement, and file the issuance of any shares of Common Stock in connection with the Commission issuance of any Preferred Returns, if the negotiation or consummation of a Registration Statement covering transaction by the resale Company or its subsidiaries is pending or an event has occurred, which negotiation, consummation or event the Board of Directors reasonably believes, upon the Conversion Shares and advice of legal counsel, would require additional disclosure by the Warrant Shares (the “Registrable Securities”) for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than 120 days from Closing Date, (the “Effective Date”). The Company shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date such registration statement of when (i) all Registrable Securities have been sold or (ii) all Registrable Securities may be sold immediately without registration under the Securities Act and without volume restrictions pursuant to Rule 144, 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 Holders. In the event material information that the Company (i) fails to file has a Registration Statement covering bona fide business purpose for keeping confidential and the resale non-disclosure of which in any such registration statement would be expected, in the reasonable determination of the Registrable SecuritiesBoard of Directors, or such Registration Statement is not effective by upon the Effective Dateadvice of legal counsel, or (ii) thereafter fails to cause such Registration Statement to remain effective with respect to the Registrable Securities, as provided for above, the Company shall, at the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144.
(i) If, unless due to a fault of a Subscriber (i) a Registration Statement is not filed on or prior to the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any such failure or breach being referred registration statement to as an fail to comply with applicable disclosure requirements (each such circumstance, a “Suspension Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncured, the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber ; provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject to the withdrawal of certain Registrable Securities from the Registration Statement, and the reason for (a) or (b) is the SEC’s determination that (x) the offering of any of the Registrable Securities constitutes a primary offering of securities by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree that the Company may reducenot delay or suspend any registration statements on more than two occasions or for more than 60 consecutive calendar days, on a pro rata basisor more than ninety (90) total calendar days, the total number of Registrable Securities to be registered on behalf of in each such Subscriber, beginning with the Conversion Shares, and the failure to include such Registrable Securities in case during any Registration Statement shall not constitute an Event and the 12-month period.
(c) The Company shall not be required to pay any partial liquidated damages as described above. However, the Company agrees to make its best use commercially reasonable efforts to file a registration statement with respect to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to effect and maintain the terms hereof shall apply listing of the CVRs on a daily pro-rata basis for any portion of a month prior to the cure of an EventNasdaq Global Market, New York Stock Exchange (or another national securities exchange) until this Agreement has been terminated.
Appears in 1 contract
Samples: Contingent Value Rights Agreement (HighPeak Energy, Inc.)
Registration and Listing. The offer and issuance of the Securities Company will cause its Common Stock to the Subscriber is being made pursuant continue to the exemptions from the registration provisions of the 1933 Act afforded by Section 4(2be registered under Sections 12(b) and 4(6or 12(g) of the 1933 Exchange Act, will comply in all respects with its reporting and filing obligations under the Exchange Act, will comply with all requirements related to any registration statement filed pursuant to this Agreement, and will not take any action or file any document (whether or not permitted by the Securities Act or the Exchange Act or the rules promulgated thereunder) to terminate or suspend such registration or to terminate or suspend its reporting and Rule 506 of Regulation D promulgated there underfiling obligations under the Exchange Act or Securities Act, until 30 days after the final Settlement Date for the Shares. The Company covenants will take all action necessary to continue the listing or trading of its Common Stock on the Principal Market and agrees will comply in all respects with each Subscriber the Company’s reporting, filing and other obligations under the bylaws or rules of the Principal Market and shall provide the Purchaser with copies of any correspondence to or from such Principal Market which questions or threatens delisting of the Common Stock, within three (3) Trading Days of the Company’s receipt thereof, until the Purchaser has disposed of all of the Shares. The Company will arrange, if necessary, for the qualification of the Common Stock for sale under the laws of such jurisdictions as the Purchaser may designate, will maintain such qualifications in effect so long as required for the distribution of the Common Stock and will pay any fees required by NASD Regulation, Inc., if any, in connection with its review of the offering, provided that, in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that on or before 30th day after would subject it to (a) the date service of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 process in suits, in any jurisdiction where it is not now so subject or (b) the Closing Date, whichever is later (the “Filing Date”), the Company shall prepare and file with the Commission a Registration Statement covering the resale of the Conversion Shares and the Warrant Shares (the “Registrable Securities”) for an offering subject it to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but taxation in any event no later than 120 days from Closing Date, (the “Effective Date”). The Company shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) all Registrable Securities have been sold or (ii) all Registrable Securities may be sold immediately without registration under the Securities Act and without volume restrictions pursuant to Rule 144, 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 Holders. In the event that the Company (i) fails to file a Registration Statement covering the resale of the Registrable Securities, or such Registration Statement is not effective by the Effective Date, or (ii) thereafter fails to cause such Registration Statement to remain effective with respect to the Registrable Securities, as provided for above, the Company shall, at the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144jurisdiction.
(i) If, unless due to a fault of a Subscriber (i) a Registration Statement is not filed on or prior to the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncured, the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject to the withdrawal of certain Registrable Securities from the Registration Statement, and the reason for (a) or (b) is the SEC’s determination that (x) the offering of any of the Registrable Securities constitutes a primary offering of securities by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required to pay any partial liquidated damages as described above. However, the Company agrees to make its best commercially reasonable efforts to file a registration statement with respect to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Event.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Illinois Superconductor Corporation)
Registration and Listing. The offer Unless the Company obtains written consent of Purchasers holding Preferred Stock representing more than fifty percent (50%) of all outstanding Preferred Shares and issuance so long as a Purchaser beneficially owns any shares of the Securities to the Subscriber is being made pursuant to the exemptions from the registration provisions of the 1933 Act afforded by Section 4(2) and 4(6) of the 1933 Act and Rule 506 of Regulation D promulgated there under. The Company covenants and agrees with each Subscriber that on or before 30th day after (a) the date of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 or (b) the Closing Date, whichever is later (the “Filing Date”)Preferred Stock, the Company shall prepare and file with the Commission a Registration Statement covering the resale of the Conversion Shares and the Warrant Shares (the “Registrable Securities”a) for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than 120 days from Closing Date, (the “Effective Date”). The Company shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when either (i) all Registrable Securities have been sold cause its Common Stock to continue to be registered under Section 12(b) or 12(g) of the Exchange Act, or (ii) continue to voluntarily file all Registrable reports required to be filed as if the Company were so registered, and in any event shall comply in all respects with its reporting and filing obligations under the Exchange Act, (b) comply with all requirements related to any registration statement filed pursuant to this Agreement, and (c) not take any action or file any document (whether or not permitted by the Securities Act or the rules promulgated thereunder) to terminate or suspend such registration or to terminate or suspend its reporting and filing obligations under the Exchange Act or Securities Act, except as permitted herein. Subject to the terms of the Transaction Documents, the Company further covenants that it will take such further action as the Purchasers may be sold immediately reasonably request, all to the extent required from time to time, to enable the Purchasers to sell the Common Stock of the Company issuable upon exercise or conversion of the Preferred Stock without registration under the Securities Act and without volume restrictions pursuant to within the limitation of the exemptions provided by Rule 144, as determined by the counsel to unless the Company pursuant to obtains written consent of Purchasers holding Preferred Stock representing more than fifty percent (50%) of all outstanding Preferred Shares and so long as a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders. In the event that the Company (i) fails to file a Registration Statement covering the resale Purchaser beneficially owns any shares of the Registrable Securities, or such Registration Statement is not effective by the Effective Date, or (ii) thereafter fails to cause such Registration Statement to remain effective with respect to the Registrable Securities, as provided for above, the Company shall, at Preferred Stock. Upon the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144.
(i) If, unless due to a fault of a Subscriber (i) a Registration Statement is not filed on or prior to the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncuredPurchasers, the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject deliver to the withdrawal of certain Registrable Securities from the Registration Statement, and the reason for (a) or (b) is the SEC’s determination that (x) the offering of any of the Registrable Securities constitutes Purchasers a primary offering of securities by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required to pay any partial liquidated damages as described above. However, the Company agrees to make its best commercially reasonable efforts to file a registration statement with respect to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion written certification of a month prior duly authorized officer as to the cure of an Eventwhether it has complied with such requirements.
Appears in 1 contract
Samples: Series D Convertible Preferred Stock Purchase Agreement (Remote MDX Inc)
Registration and Listing. 9.1 The offer Company shall file a registration statement with the Securities and issuance Exchange Commission (the "SEC") as soon as reasonably practicable following the conclusion of the Securities to the Subscriber is being made pursuant to the exemptions from the registration provisions of the 1933 Act afforded by Section 4(2) and 4(6) of the 1933 Act and Rule 506 of Regulation D promulgated there under. The Company covenants and agrees with each Subscriber that on or before 30th day after (a) the date of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 or (b) the Closing Date, whichever is later (the “Filing Date”), the Company shall prepare and file with the Commission a Registration Statement Offering covering the resale of the Conversion Shares shares of Common Stock issuable upon the conversion of the Series A Stock and the Warrant Shares (exercise of the “Registrable Securities”) for an offering to be made on a continuous basis pursuant to Rule 415Warrants issuable upon the exercise of this Option. The Registration Statement shall be on Form S-3. The In addition, the Company shall use its best commercially reasonable efforts to cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to be have such registration statement declared effective under by the Securities Act as promptly as possible after the filing thereof, but in any event Commission by no later than 120 days from Closing DateMarch 31, 2004 (the “"Target Effective Date”"). The Company shall use its best efforts , and to keep maintain the Registration Statement continuously effective under the Securities Act effectiveness of such registration statement until the date which is third (3rd) anniversary of the earlier date closing of when (i) all Registrable Securities have been sold or (ii) all Registrable Securities may be sold immediately without registration under the Securities Act and without volume restrictions pursuant to Rule 144, 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 Holdersthis Offering. In the event that the Company (i) fails to file a Registration Statement covering have the resale of the Registrable Securities, or Commission declare such Registration Statement is not registration statement effective by the Target Effective Date, or (ii) thereafter fails to cause then the dividend rate on the shares of Series A Stock receivable upon the exercise of this Option shall increase by 2% for each whole calendar month during which such Registration Statement to remain effective with respect to the Registrable Securities, as provided for above, the Company shall, at the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144.
(i) If, unless due to a fault of a Subscriber (i) a Registration Statement is not filed on or prior to the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder registration statement is not declared effective by the Commission on or before SEC; provided however, that in no event shall the Effective Datedividend rate exceed 20%. Upon the effectiveness of such registration statement, (any such failure or breach being referred the dividend rate shall re-adjust to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in 11%. In addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncuredforegoing, the Company furthermore grants to the Holder any additional "piggyback" or other registration rights granted to the investors in the Offering.
9.2 The Company shall pay secure the listing of the Common Stock underlying the Units upon each national securities exchange or automated quotation system upon which shares of Common Stock are then listed (subject to each Subscriber an amount official notice of issuance) and shall maintain such listing of shares of Common Stock issued under the terms of the Option. The Company shall at all times comply in cashall respects with the Company's reporting, filing and other obligations under the by-laws or rules of the National Association of Securities Dealers, Inc. and the NASDAQ SmallCap Market (or such other national securities exchange or market on which the Common Stock may then be listed, as partial liquidated damages applicable).
9.3 The Company will prepare and not file with the SEC such amendments and supplements to the registration statement (and the prospectus contained therein) referred to in Section 9.1 above as a penalty, equal may be necessary to 1.0% keep such registration statement effective until the sale of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resalesecurities registered thereunder, subject to an overall limit of partial liquidated damages in and shall comply with the aggregate of 6% provisions of the aggregate purchase price paid by such Subscriber providedSecurities Act of 1933, however, that as amended (athe "Act") in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject to the withdrawal of certain Registrable Securities from the Registration Statement, and the reason for (a) or (b) is the SEC’s determination that (x) the offering of any of the Registrable Securities constitutes a primary offering of securities by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required to pay any partial liquidated damages as described above. However, the Company agrees to make its best commercially reasonable efforts to file a registration statement with respect to any Registrable Securities belonging to any the disposition of all securities owned by the Holder that are covered by such affected Subscriber as soon as practicable thereafterregistration statement during such period in accordance with the intended methods of disposition by the Holder. The partial liquidated damages pursuant Company at its own expense will furnish to the terms hereof Holder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus) and such other documents as the Holder may request in order to facilitate the disposition of the shares owned by the Holder.
9.4 The Company shall apply on a daily pro-rata basis for any portion of a month prior pay all expenses relating to the cure of an Eventregistration and listing obligations set forth in this Section 9.
Appears in 1 contract
Samples: Placement Agent Units Purchase Option (Whitewing Environmental Corp)
Registration and Listing. The offer and issuance of (a) So long as a Purchaser Beneficially Owns any Securities, the Securities Company will cause the Common Stock to the Subscriber is being made pursuant continue at all times to the exemptions from the registration provisions of the 1933 Act afforded by be registered under Section 4(212(b) and 4(6or 12(g) of the 1933 Exchange Act, will comply in all respects with its reporting and filing obligations under the Exchange Act, and will not take any action or file any document (whether or not permitted by the Exchange Act or the rules thereunder) to terminate or suspend such reporting and Rule 506 of Regulation D promulgated there under. The Company covenants and agrees with each Subscriber that on or before 30th day after (a) the date of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 or obligations.
(b) the Closing Date, whichever is later (the “Filing Date”), the The Company shall prepare and file a registration statement with the Securities and Exchange Commission a Registration Statement covering in accordance with the resale terms of the Conversion Shares Registration Rights Agreement, relating to the offer and sale of the Warrant Shares maximum amount of the Registrable Securities (as defined in the “Registrable Securities”Registration Rights Agreement) for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3. as provided therein.
(c) The Company shall use its reasonable best commercially reasonable efforts (i) to qualify to list its shares of Common Stock on an Approved Market as promptly as practicable following the date hereof; (ii) subject to the qualification for listing set forth in clause (i) hereof, and so long as the Purchasers Beneficially Own any Securities, to continue the listing or trading of the Common Stock on an Approved Market and to comply in all respects with the Company’s reporting, filing and other obligations under the bylaws or rules of the Approved Market on which the Common Stock is listed for trading; (iii) subject to the qualification for listing set forth in clause (i) hereof, and so long as the Purchasers Beneficially Own any Securities, to cause the Registration Statement Series A Conversion Shares to become effective be approved for listing and remain effective listed, as provided hereinapplicable, on the Approved Market on which the Common Stock is listed for trading. Notwithstanding the foregoing, in no event shall the Company take any action in furtherance of this Section 5.8(c) that is inconsistent with or in conflict with its other obligations pursuant to this Agreement and the Transaction Documents without the prior written consent of the Purchasers. The Company shall use pay all fees and expenses in connection with satisfying its best commercially reasonable efforts obligations under this Section 5.8, except to cause the extent set forth in the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than 120 days from Closing Date, (the “Effective Date”). The Company shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) all Registrable Securities have been sold or (ii) all Registrable Securities may be sold immediately without registration under the Securities Act and without volume restrictions pursuant to Rule 144, 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 Holders. In the event that the Company (i) fails to file a Registration Statement covering the resale of the Registrable Securities, or such Registration Statement is not effective by the Effective Date, or (ii) thereafter fails to cause such Registration Statement to remain effective with respect to the Registrable Securities, as provided for above, the Company shall, at the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144Rights Agreement.
(i) If, unless due to a fault of a Subscriber (i) a Registration Statement is not filed on or prior to the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncured, the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject to the withdrawal of certain Registrable Securities from the Registration Statement, and the reason for (a) or (b) is the SEC’s determination that (x) the offering of any of the Registrable Securities constitutes a primary offering of securities by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required to pay any partial liquidated damages as described above. However, the Company agrees to make its best commercially reasonable efforts to file a registration statement with respect to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Event.
Appears in 1 contract
Registration and Listing. The offer and issuance of the Securities Company shall cause its Common Stock to the Subscriber is being made pursuant continue to the exemptions from the registration provisions of the 1933 Act afforded by Section 4(2be registered under Sections 12(b) and 4(6or 12(g) of the 1933 Act Exchange Act, to comply in all respects with its reporting and Rule 506 of Regulation D promulgated there under. The Company covenants and agrees filing obligations under the Exchange Act, to comply with each Subscriber that on or before 30th day after (a) the date of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 or (b) the Closing Date, whichever is later (the “Filing Date”), the Company shall prepare and file with the Commission a Registration Statement covering the resale of the Conversion Shares and the Warrant Shares (the “Registrable Securities”) for an offering all requirements related to be made on a continuous basis any registration statement filed pursuant to Rule 415. The Registration Statement shall be on Form S-3. The Company shall use this Agreement, and to not take any action or file any document (whether or not permitted by the Securities Act or the rules promulgated thereunder) to terminate or suspend such registration or to terminate or suspend its best commercially reasonable efforts to cause reporting and filing obligations under the Registration Statement to become effective and remain effective Exchange Act or Securities Act, except as provided permitted herein. The Company shall use will take all action necessary to continue the listing or trading of its best commercially reasonable efforts Common Stock on the Trading Market, and as soon as reasonably practicable following the Closing to list all of the Acquired Shares and Warrant Shares on such Trading Market. The Company further agrees, if the Company applies to have the Common Stock traded on any other Trading Market, it will include in such application all of the Acquired Shares and Warrant Shares, and will take such other action as is necessary to cause all of the Registration Statement Acquired Shares and Warrant Shares to be declared effective under the Securities Act listed on such other Trading Market as promptly as possible after the filing thereof, but in any event no later than 120 days from Closing Date, (the “Effective Date”)possible. The Company shall use will take all action reasonably necessary to continue the listing and trading of its best efforts to keep Common Stock on a Trading Market and will comply in all respects with the Registration Statement continuously effective Company’s reporting, filing and other obligations under the Securities Act until bylaws or rules of the date which is Trading Market. Subject to the earlier date terms of when (i) the Transaction Documents, the Company further covenants that it will take such further action as the Purchaser may reasonably request, all Registrable Securities have been sold or (ii) all Registrable Securities may be sold immediately to the extent required from time to time to enable the Purchaser to sell the Acquired Shares and Warrant Shares without registration under the Securities Act and without volume restrictions pursuant to Rule 144, as determined by within 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 Holders. In the event that the Company (i) fails to file a Registration Statement covering the resale limitation of the Registrable Securities, or such Registration Statement is not effective exemptions provided by Rule 144 promulgated under the Effective Date, or (ii) thereafter fails to cause such Registration Statement to remain effective with respect to the Registrable Securities, as provided for above, the Company shall, at Securities Act. Upon the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144.
(i) If, unless due to a fault of a Subscriber (i) a Registration Statement is not filed on or prior to the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncuredPurchaser, the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject deliver to the withdrawal Purchaser a written certification of certain Registrable Securities from the Registration Statement, and the reason for (a) or (b) is the SEC’s determination that (x) the offering of any of the Registrable Securities constitutes a primary offering of securities by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named duly authorized officer as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning whether it has complied with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required to pay any partial liquidated damages as described above. However, the Company agrees to make its best commercially reasonable efforts to file a registration statement with respect to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion issuer requirements of a month prior to the cure of an EventRule 144.
Appears in 1 contract
Registration and Listing. The offer and issuance of the Securities Company will cause its Common Stock to the Subscriber is being made pursuant continue to the exemptions from the registration provisions of the 1933 Act afforded by Section 4(2be registered under Sections 12(b) and 4(6or 12(g) of the 1933 Exchange Act, will comply in all respects with its reporting and filing obligations under the Exchange Act, will comply with all requirements related to any registration statement filed pursuant to this Agreement, and will not take any action or file any document (whether or not permitted by the Securities Act or the Exchange Act or the rules promulgated thereunder) to terminate or suspend such registration or to terminate or suspend its reporting and Rule 506 of Regulation D promulgated there underfiling obligations under the Exchange Act or Securities Act, until 30 days after the final Settlement Date for the Shares. The Company covenants will use its reasonable best efforts to continue the listing or trading of its Common Stock on the Principal Market and agrees will comply in all respects with each Subscriber the Company's reporting, filing and other obligations under the bylaws or rules of the Principal Market and shall provide the Purchaser with copies of any correspondence to or from such Principal Market which 13 14 questions or threatens delisting of the Common Stock, within three (3) Trading Days of the Company's receipt thereof, until the Purchaser has disposed of all of the Shares. The Company will arrange, if necessary, for the qualification of the Common Stock for sale under the laws of such jurisdictions as the Purchaser may designate, will maintain such qualifications in effect so long as required for the distribution of the Common Stock and will pay any fees required by NASD Regulation, Inc., if any, in connection with its review of the offering, provided that, in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that on or before 30th day after would subject it to (a) the date service of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 process in suits, in any jurisdiction where it is not now so subject or (b) the Closing Date, whichever is later (the “Filing Date”), the Company shall prepare and file with the Commission a Registration Statement covering the resale of the Conversion Shares and the Warrant Shares (the “Registrable Securities”) for an offering subject it to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but taxation in any event no later than 120 days from Closing Date, (the “Effective Date”). The Company shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) all Registrable Securities have been sold or (ii) all Registrable Securities may be sold immediately without registration under the Securities Act and without volume restrictions pursuant to Rule 144, 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 Holders. In the event that the Company (i) fails to file a Registration Statement covering the resale of the Registrable Securities, or such Registration Statement is not effective by the Effective Date, or (ii) thereafter fails to cause such Registration Statement to remain effective with respect to the Registrable Securities, as provided for above, the Company shall, at the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144jurisdiction.
(i) If, unless due to a fault of a Subscriber (i) a Registration Statement is not filed on or prior to the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncured, the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject to the withdrawal of certain Registrable Securities from the Registration Statement, and the reason for (a) or (b) is the SEC’s determination that (x) the offering of any of the Registrable Securities constitutes a primary offering of securities by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required to pay any partial liquidated damages as described above. However, the Company agrees to make its best commercially reasonable efforts to file a registration statement with respect to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Event.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (General Magic Inc)
Registration and Listing. The offer Unless the Company obtains written consent of Purchasers holding Securities representing more than fifty percent (50%) of all Securities and issuance so long as a Purchaser beneficially owns any of the Securities to the Subscriber is being made pursuant to the exemptions from the registration provisions of the 1933 Act afforded by Section 4(2) and 4(6) of the 1933 Act and Rule 506 of Regulation D promulgated there under. The Company covenants and agrees with each Subscriber that on or before 30th day after (a) the date of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 or (b) the Closing Date, whichever is later (the “Filing Date”)Securities, the Company shall prepare and file with the Commission a Registration Statement covering the resale of the Conversion Shares and the Warrant Shares (the “Registrable Securities”a) for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than 120 days from Closing Date, (the “Effective Date”). The Company shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when either (i) all Registrable Securities have been sold cause its Common Stock to continue to be registered under Section 12(b) or 12(g) of the Exchange Act, or (ii) continue to voluntarily file all Registrable reports required to be filed as if the Company were so registered, and in any event shall comply in all respects with its reporting and filing obligations under the Exchange Act, (b) comply with all requirements related to any registration statement filed pursuant to this Agreement, and (c) not take any action or file any document (whether or not permitted by the Securities Act or the rules promulgated thereunder) to terminate or suspend such registration or to terminate or suspend its reporting and filing obligations under the Exchange Act or Securities Act, except as permitted herein. Subject to the terms of the Transaction Documents, the Company further covenants that it will take such further action as the Purchasers may be sold immediately reasonably request, all to the extent required from time to time, to enable the Purchasers to sell the Common Stock of the Company issuable upon exercise or conversion of the Securities without registration under the Securities Act and without volume restrictions pursuant to within the limitation of the exemptions provided by Rule 144, as determined by the counsel to unless the Company pursuant to obtains written consent of Purchasers holding Securities representing more than fifty percent (50%) of all Securities and so long as a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders. In the event that the Company (i) fails to file a Registration Statement covering the resale Purchaser beneficially owns any of the Registrable Securities, or such Registration Statement is not effective by the Effective Date, or (ii) thereafter fails to cause such Registration Statement to remain effective with respect to the Registrable Securities, as provided for above, the Company shall, at . Upon the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144.
(i) If, unless due to a fault of a Subscriber (i) a Registration Statement is not filed on or prior to the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncuredPurchasers, the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject deliver to the withdrawal of certain Registrable Securities from the Registration Statement, and the reason for (a) or (b) is the SEC’s determination that (x) the offering of any of the Registrable Securities constitutes Purchasers a primary offering of securities by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required to pay any partial liquidated damages as described above. However, the Company agrees to make its best commercially reasonable efforts to file a registration statement with respect to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion written certification of a month prior duly authorized officer as to the cure of an Eventwhether it has complied with such requirements.
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (NovaRay Medical, Inc.)
Registration and Listing. The offer and issuance of the Securities to the Subscriber is being made pursuant to the exemptions from the registration provisions of the 1933 Act afforded by Section 4(2) and 4(6) of the 1933 Act and Rule 506 of Regulation D promulgated there under. The Company covenants and agrees with each Subscriber that on or before 30th day after (a) In the date event the Company determines, in its sole discretion, to register a public offering of filing with its securities under the Commission its Annual Report on Form 10-KSB for Securities Act, or in the year 2007 or (b) the Closing Datealternative, whichever is later (the “Filing Date”)grants registration and related rights to another shareholder without registering a public offering, the Company shall prepare provide the Purchaser registration and file related rights with respect to the Commission a Registration Statement covering the resale of the Conversion Shares and the Warrant Shares (which shall include reasonable and customary indemnification, filing delay agreements, agreement not to sell, underwriting and the “Registrable Securities”) for an offering to be made like, on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to become effective and remain effective terms as provided herein. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than 120 days from Closing Date, (the “Effective Date”). The Company shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) all Registrable Securities have been sold or (ii) all Registrable Securities may be sold immediately without registration under the Securities Act and without volume restrictions pursuant to Rule 144, as determined by the counsel favorable to the Company pursuant Purchaser as are granted to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders. In the event that any current or future stockholder of the Company (i) fails to file a Registration Statement covering and in connection therewith the resale of the Registrable Securities, or such Registration Statement is not effective by the Effective Date, or (ii) thereafter fails to cause such Registration Statement to remain effective with respect to the Registrable Securities, as provided for above, the Company shall, at the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144.
(i) If, unless due to a fault of a Subscriber (i) a Registration Statement is not filed on or prior to the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any such failure or breach being referred to as an “Event,” Purchaser and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncured, the Company shall pay agree to each Subscriber an amount in cashsuch other registration rights as are reasonable and customary, as partial liquidated damages including indemnification, filing delay provisions, agreement not to sell, underwriting arrangements and not as a penalty, equal to 1.0% the like. The rights of the aggregate purchase price paid by such Subscriber pursuant Purchaser under this Section 4.2(a) shall inure to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% benefit of the aggregate purchase price paid by such Subscriber provided, however, that (a) transferee in the case of a transfer to an affiliate or to a transferee of Shares and/or Warrants representing at least twenty-five percent (ii), if 25%) of the Commission does not declare Common Stock (including Common Stock issuable upon exercise of the Registration Statement effective on or before Warrants) purchased hereunder. The registration obligations of the Effectiveness Date, or Company shall terminate five (b), if the Commission allows the Registration Statement to be declared effective at any time before or 5) years after the Effectiveness Date, subject to the withdrawal of certain Registrable Securities from the Registration Statement, and the reason for (a) or date hereof.
(b) If any shares of Common Stock issued or issuable hereunder (the "Registrable Shares") require registration with or approval of ------------------- any governmental authority under any federal or state or other applicable law before such Common Stock may be issued or delivered, WWAT will in good faith and as expeditiously as possible endeavor to cause such Common Stock to be duly registered or approved, as the case may be, unless such registration or approval is required solely because of a breach of a Purchaser's representation contained in Article 3. So long as the SEC’s determination that (x) Common Stock is quoted on the offering of OTC Bulletin Board, NASDAQ or listed on any of the Registrable Securities constitutes a primary offering of national securities exchange, WWAT will, if permitted by the Companyrules of such system or exchange, (y) Rule 415 may not be relied upon for the registration of any quote or list and keep quoted or listed on such system or exchange all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required to pay any partial liquidated damages as described above. However, the Company agrees to make its best commercially reasonable efforts to file a registration statement with respect to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an EventCommon Stock issued or issuable hereunder.
Appears in 1 contract
Samples: Stock and Warrant Purchase Agreement (Worldwater & Solar Technologies Corp.)
Registration and Listing. The offer Company shall take all action necessary to cause the Common Shares, the Series A Preferred Shares, the Series B Preferred Shares, the Series C Preferred Shares and issuance any additional class or series of the Securities to the Subscriber is being made pursuant to the exemptions from the registration provisions of the 1933 Act afforded by Company Shares registered under Section 4(212(b) and 4(6or 12(g) of the 1933 Exchange Act and Rule 506 each to continue to be registered as a class of Regulation D promulgated there under. The Company covenants and agrees with each Subscriber that on securities under Sections 12(b) or before 30th day after (a12(g) the date of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 or (b) the Closing Date, whichever is later (the “Filing Date”), the Company shall prepare and file with the Commission a Registration Statement covering the resale of the Conversion Shares Exchange Act so long as such securities remain outstanding, shall comply with its reporting and filing obligations under the Warrant Shares Exchange Act, and shall not take any action or file any document (whether or not permitted by the “Registrable Securities”Securities Act) for an offering to be made on a continuous basis pursuant terminate or suspend such registration or to Rule 415. The Registration Statement shall be on Form S-3. The Company shall use terminate or suspend its best commercially reasonable efforts to cause reporting and filing obligations under the Registration Statement to become effective and remain effective Exchange Act or Securities Act, except as provided permitted herein. The Company shall use take all action necessary to continue the listing and trading of its best commercially reasonable efforts to cause Common Shares, the Registration Statement to be declared effective Series A Preferred Shares, the Series B Preferred Shares, the Series C Preferred Shares and any additional class or series of Company Shares listed on a Trading Market on the applicable Trading Market (including, without limitation, maintaining sufficient tangible net assets) so long as such securities remain outstanding, and shall comply with the Company’s reporting, filing and other obligations under the Securities Act as promptly as possible after bylaws, listed securities maintenance standards and other rules and regulations of the filing thereof, but in any event no later than 120 days from Closing Date, (FINRA and the “Effective Date”)applicable Trading Market. The Company shall use its best efforts not take any action which could reasonably be expected to keep result in the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) all Registrable Securities have been sold delisting or (ii) all Registrable Securities may be sold immediately without registration under the Securities Act and without volume restrictions pursuant to Rule 144, 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 Holders. In the event that the Company (i) fails to file a Registration Statement covering the resale suspension of the Registrable Securities, or such Registration Statement is not effective by the Effective Date, or (ii) thereafter fails to cause such Registration Statement to remain effective with respect to the Registrable Securities, as provided for aboveCommon Shares, the Company shall, at the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144.
(i) If, unless due to a fault of a Subscriber (i) a Registration Statement is not filed on or prior to the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncuredSeries A Preferred Shares, the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject to the withdrawal of certain Registrable Securities from the Registration Statement, and the reason for (a) or (b) is the SEC’s determination that (x) the offering of any of the Registrable Securities constitutes a primary offering of securities by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriterSeries B Preferred Shares, the Subscribers understand and agree that the Series C Preferred Shares or any additional class or series of Company may reduce, Shares listed on a pro rata basis, Trading Market on the total number of Registrable Securities to be registered on behalf of each applicable Trading Market so long as such Subscriber, beginning with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required to pay any partial liquidated damages as described above. However, the Company agrees to make its best commercially reasonable efforts to file a registration statement with respect to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Eventsecurities remain outstanding.
Appears in 1 contract
Samples: Securities Purchase Agreement (RAIT Financial Trust)
Registration and Listing. The offer and issuance of the Securities MPA shall either (i) cause its Common Stock to the Subscriber is being made pursuant continue to the exemptions from the registration provisions of the 1933 Act afforded by be registered under Section 4(212(b) and 4(6or 12(g) of the 1933 Act and Rule 506 Exchange Act, or (ii) continue to voluntarily file all reports required to be filed as if MPA were so registered. Except with respect to the timeliness of Regulation D promulgated there under. The Company covenants and agrees with each Subscriber that on or before 30th day after (a) the date filing of filing with the Commission its MPA’s Annual Report on Form 10-KSB K for the fiscal year 2007 or (b) ended March 31, 2012, MPA shall comply in all respects with its reporting and filing obligations under the Closing Date, whichever is later (the “Filing Date”), the Company shall prepare and file with the Commission a Registration Statement covering the resale of the Conversion Shares and the Warrant Shares (the “Registrable Securities”) for an offering to be made on a continuous basis pursuant to Rule 415Exchange Act. The Registration Statement shall be on Form S-3. The Company MPA shall use its best commercially reasonable efforts to cause a shelf registration statement on Form S-3 (or another available form) with respect to the Registration Statement resale of the Shares to become be declared effective by the Commission no later than July 1, 2014 (or, if earlier, upon the occurrence of an Event of Default) and remain kept continuously effective thereafter, and shall keep a prospectus continuously available for the resale of all such Shares until all such Shares have been resold into the market. MPA shall not take any action or file any document (whether or not permitted by the Securities Act or the rules promulgated thereunder) to terminate or suspend such registration or to terminate or suspend its reporting and filing obligations under the Exchange Act or Securities Act, except as provided permitted herein. The Company shall MPA will use its best commercially reasonable efforts to submit a plan to regain compliance with the continuing listing requirements by August 28, 2012 as directed in the NASDAQ Notice and to address the NASDAQ Notice by filing the Form 10-K for the fiscal year ended March 31, 2012 within such timeframe, and will take all action necessary (including, without limitation, seeking shareholder approval of the issuance of the Shares, if necessary) to cause the Registration Statement Shares to be declared effective under listed on the Securities Act as promptly as possible after NASDAQ Global Market and/or any other exchange on which the filing thereof, but in any event no later than 120 days from Closing Date, (the “Effective Date”). The Company shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until Common Stock is then listed on or before the date which is of issuance of such Shares. Subject to the earlier date terms of when (i) the Transaction Documents, MPA further covenants that it will take such further action as WAC may reasonably request, all Registrable Securities have been sold or (ii) all Registrable Securities may be sold immediately to the extent required from time to time, to enable WAC to sell the Shares without registration under the Securities Act and without volume restrictions pursuant to within the limitation of the exemptions provided by Rule 144, 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 Holders. In the event that the Company (i) fails to file a Registration Statement covering the resale of the Registrable Securities, or such Registration Statement is not effective by the Effective Date, or (ii) thereafter fails to cause such Registration Statement to remain effective with respect to the Registrable Securities, as provided for above, the Company shall, at Upon the request of WAC, MPA shall deliver to WAC a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144.
(i) If, unless due to a fault written certification of a Subscriber (i) a Registration Statement is not filed on or prior duly authorized officer as to the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any whether it has complied with such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncured, the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject to the withdrawal of certain Registrable Securities from the Registration Statement, and the reason for (a) or (b) is the SEC’s determination that (x) the offering of any of the Registrable Securities constitutes a primary offering of securities by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required to pay any partial liquidated damages as described above. However, the Company agrees to make its best commercially reasonable efforts to file a registration statement with respect to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Eventrequirements.
Appears in 1 contract
Samples: Revolving Credit/Strategic Cooperation Agreement (Motorcar Parts America Inc)
Registration and Listing. The offer and issuance If the Preferred Shares, or any shares of Common Stock required to be reserved for purposes of exercise of the Securities to Class A Warrants as provided in the Subscriber is being made pursuant to the exemptions from the Class A Warrants, require registration provisions with or approval of any Governmental Authority under any federal or state or other applicable law before such Preferred Shares or Common Stock may be issued or delivered upon exercise of the 1933 Act afforded by Section 4(2) and 4(6) of the 1933 Act and Rule 506 of Regulation D promulgated there under. The Company covenants and agrees with each Subscriber that on or before 30th day after (a) the date of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 or (b) the Closing Date, whichever is later (the “Filing Date”)Class A Warrants, the Company shall prepare will in good faith and file with as expeditiously as possible endeavor to cause such Preferred Shares or Common Stock to be duly registered or approved, as the Commission case may be, unless such registration or approval is required solely because of a Registration Statement covering the resale breach of the Conversion Shares and the Warrant Shares (the “Registrable Securities”) for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but Purchaser's representation contained in any event no later than 120 days from Closing Date, (the “Effective Date”). The Company shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) all Registrable Securities have been sold Sections 6.5 or (ii) all Registrable Securities may be sold immediately without registration under the Securities Act and without volume restrictions pursuant to Rule 144, 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 Holders6.8. In the event that that, and so long as, the Common Stock is listed on the NYSE or quoted or listed on any other national securities exchange or NASDAQ, the Company will, if permitted by the rules of such system or exchange, quote or list and keep quoted or listed on such exchange or NASDAQ, upon official notice of issuance, all Common Stock issuable or deliverable upon exercise of the Class A Warrants. In addition, the Company will in good faith and as expeditiously as possible endeavor (i) fails to file a Registration Statement covering obtain private placement numbers for the resale of Class A Warrants, the Registrable SecuritiesCommon Stock issued pursuant to the exercise thereof and the Preferred Shares, or such Registration Statement is not effective assigned by the Effective Date, or CUSIP Service Bureau of Standard & Poor's Corporation and (ii) thereafter fails to cause such Registration Statement to remain effective with respect to the Registrable Securities, as provided for above, the Company shall, at the request of a Subscriberthe Purchaser, use its best efforts to enable such Subscriber to transfer its Registrable Securities cause the Class A Warrants, the Common Stock issued pursuant to Rule 144.
(i) If, unless due to a fault of a Subscriber (i) a Registration Statement is not filed on or prior to the Filing Date, or (ii) a Registration Statement filed or required exercise thereof and Preferred Shares to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncured, the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber provided, however, PORTAL trading system (it being understood that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject to the withdrawal of certain Registrable Securities from the Registration Statement, and the reason for (a) or (b) is the SEC’s determination that (x) the offering of any of the Registrable Securities constitutes a primary offering of securities by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required to pay amend this Agreement in any partial liquidated damages material way so as described above. However, to cause the Company agrees Common Shares or the Preferred Shares to make its best commercially reasonable efforts be eligible to file a registration statement with respect to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to trade on the terms hereof shall apply on a daily pro-rata basis PORTAL system) and for any portion of a month prior to the cure of an Eventclearance and settlement through Depository Trust Company.
Appears in 1 contract
Registration and Listing. The offer and issuance of the Securities Company shall (a) either (i) cause its Common Stock to the Subscriber is being made pursuant continue to the exemptions from the registration provisions of the 1933 Act afforded by be registered under Section 4(212(b) and 4(6or 12(g) of the 1933 Exchange Act, or (ii) continue to voluntarily file all reports required to be filed as if the Company were so registered, and in any event shall comply in all respects with its reporting and filing obligations under the Exchange Act, (b) comply with all requirements related to any registration statement filed pursuant to this Agreement, and (c) not take any action or file any document (whether or not permitted by the Securities Act or the rules promulgated thereunder) to terminate or suspend such registration or to terminate or suspend its reporting and Rule 506 of Regulation D promulgated there underfiling obligations under the Exchange Act or Securities Act, except as permitted herein. The Company covenants and agrees with each Subscriber that will take all action necessary to continue the listing or trading of its Common Stock on the OTC Bulletin Board or before 30th day after (a) other exchange or market on which the date Common Stock is trading or may be traded in the future. Upon the request of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 or (b) the Closing Date, whichever is later (the “Filing Date”)Purchasers, the Company shall prepare and file deliver to the Purchasers a written certification of a duly authorized officer as to whether it has complied with such requirements. Subject to the Commission a Registration Statement covering the resale terms of the Conversion Transaction Documents, the Company further covenants that it will take such further action as the Purchasers may reasonably request, all to the extent required from time to time, to enable the Purchasers to sell the Shares and the Warrant Shares (the “Registrable Securities”) for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than 120 days from Closing Date, (the “Effective Date”). The Company shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) all Registrable Securities have been sold or (ii) all Registrable Securities may be sold immediately without registration under the Securities Act within the limitation of the exemptions provided by Rule 144. The Company will take all action necessary to list its Common Stock on the NASDAQ or higher exchange as soon as possible after the date hereof and without volume restrictions the Company agrees to issue an aggregate of 1,000,000 shares of its Common Stock to the Purchasers, to be divided pro rata among the Purchasers based upon the number of Preferred Shares initially acquired by each Purchaser pursuant to Rule 144this Agreement, as determined if its Common Stock is not so listed by June 30, 2009 (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 Holders. In the event that the Company (i) fails to file a Registration Statement covering the resale of the Registrable Securities“Listing Shares”), or such later date as both the Purchasers and the Company agree to in writing. The Listing Shares, if issued, shall have the same demand registration rights as the Warrant Shares and the same piggy back registration rights as set forth in the Registration Statement is not effective by the Effective Date, or (ii) thereafter fails to cause such Registration Statement to remain effective with respect Rights Agreement. Subject to the Registrable Securities, as provided for aboveterms of the Transaction Documents, the Company shallfurther covenants that it will take such further action as the Purchasers may reasonably request, at all to the extent required from time to time to enable the Purchasers to sell the Listing Shares without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 promulgated under the Securities Act. Upon the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144.
(i) If, unless due to a fault of a Subscriber (i) a Registration Statement is not filed on or prior to the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncuredPurchasers, the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject deliver to the withdrawal of certain Registrable Securities from the Registration Statement, and the reason for (a) or (b) is the SEC’s determination that (x) the offering of any of the Registrable Securities constitutes Purchasers a primary offering of securities by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required to pay any partial liquidated damages as described above. However, the Company agrees to make its best commercially reasonable efforts to file a registration statement with respect to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion written certification of a month prior duly authorized officer as to the cure of an Eventwhether it has complied with such requirements.
Appears in 1 contract
Samples: Series a Convertible Preferred Stock Purchase Agreement (International Imaging Systems Inc)
Registration and Listing. The offer and issuance of Beginning at such time as the Securities to the Subscriber is being made pursuant to the exemptions from the registration provisions of the 1933 Act afforded by Section 4(2Common Stock shall be registered under Sections 12(b) and 4(6or 12(g) of the 1933 Exchange Act and Rule 506 or the Company is obligated to file periodic reports under Section 15(d) of Regulation D promulgated there under. The Company covenants and agrees with each Subscriber that on or before 30th day after the Exchange Act (a) the date of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 or (b) the Closing Datesuch date, whichever is later (the “Filing Registration Date”), of which there can be no assurance, the Company shall prepare comply in all respects with its reporting and filing obligations under the Exchange Act, shall comply with all requirements related to any registration statement registering any of the Securities for resale, and shall not voluntarily take any action or file with any document (whether or not permitted by the Commission Securities Act or the rules promulgated thereunder) to terminate or suspend such registration or to terminate or suspend its reporting and filing obligations under the Exchange Act or the Securities Act. Beginning at such time as the Common Stock shall be listed or traded on the OTCBB, the OTCQB, the OTCQX or any national securities exchange, of which there can be no assurance, the Company shall take all action necessary to continue such listing or trading and, if required, will file a Registration Statement covering “Listing Application” for, or in connection with, the resale issuance and delivery of the Conversion Shares and Exercise Shares. Subject to the Warrant Shares (terms of the “Registrable Securities”) for an offering Transaction Documents, the Company further covenants that it will take such further action as a Lender may reasonably request, all to be made on a continuous basis pursuant the extent required from time to Rule 415. The Registration Statement shall be on Form S-3. The Company shall use its best commercially reasonable efforts time to cause the Registration Statement enable such Lender to become effective and remain effective as provided herein. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to be declared effective under sell the Securities Act as promptly as possible after the filing thereof, but in any event no later than 120 days from Closing Date, (the “Effective Date”). The Company shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) all Registrable Securities that have been sold or (ii) all Registrable Securities may be sold immediately issued to it without registration under the Securities Act and without volume restrictions pursuant to Rule 144, as determined by within 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 Holders. In the event that the Company (i) fails to file a Registration Statement covering the resale limitation of the Registrable Securitiesexemptions provided by Rule 144 promulgated under the Securities Act; provided, or such Registration Statement is not effective by for the Effective Dateavoidance of doubt, or (ii) thereafter fails to cause such Registration Statement to remain effective with respect to the Registrable Securitiesthat, as provided for above, the Company shall, at the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144.
(i) If, unless due to a fault of a Subscriber (i) a Registration Statement is not filed on or prior to the Filing Registration Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncured, the Company shall pay have no obligation to each Subscriber an amount in cashfile reports under the Exchange Act or otherwise provide current public information under Rule 144(c). Upon the request of Platinum, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject to the withdrawal of certain Registrable Securities from the Registration Statement, and the reason for (a) or (b) is the SEC’s determination that (x) the offering of any of the Registrable Securities constitutes a primary offering of securities by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required to pay any partial liquidated damages as described above. However, the Company agrees to make its best commercially reasonable efforts to file a registration statement with respect to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant deliver to the terms hereof shall apply on Lenders a daily pro-rata basis for any portion written certification of a month prior duly authorized officer as to the cure of an Eventwhether it has complied with such requirements.
Appears in 1 contract
Samples: Exchange and Waiver Agreement (Urigen Pharmaceuticals, Inc.)
Registration and Listing. The offer and issuance of the Securities Company shall cause its Common Stock to the Subscriber is being made pursuant continue to the exemptions from the registration provisions of the 1933 Act afforded by Section 4(2be registered under Sections 12(b) and 4(6or 12(g) of the 1933 Act Exchange Act, to comply in all respects with its reporting and Rule 506 of Regulation D promulgated there under. The Company covenants and agrees filing obligations under the Exchange Act, to comply with each Subscriber that on or before 30th day after (a) the date of filing with the Commission its Annual Report on Form 10-KSB for the year 2007 or (b) the Closing Date, whichever is later (the “Filing Date”), the Company shall prepare and file with the Commission a Registration Statement covering the resale of the Conversion Shares and the Warrant Shares (the “Registrable Securities”) for an offering all requirements related to be made on a continuous basis any registration statement filed pursuant to Rule 415. The Registration Statement shall be on Form S-3. The Company shall use this Agreement, and to not take any action or file any document (whether or not permitted by the Securities Act or the rules promulgated thereunder) to terminate or suspend such registration or to terminate or suspend its best commercially reasonable efforts to cause reporting and filing obligations under the Registration Statement to become effective and remain effective Exchange Act or Securities Act, except as provided permitted herein. The Company shall use will take all action necessary to continue the listing or trading of its best commercially reasonable efforts Common Stock on the Trading Market, and as soon as reasonably practicable following the Closing to list all of the Warrant Shares on such Trading Market. The Company further agrees, if the Company applies to have the Common Stock traded on any other Trading Market, it will include in such application all of the Warrant Shares, and will take such other action as is necessary to cause all of the Registration Statement Warrant Shares to be declared effective under the Securities Act listed on such other Trading Market as promptly as possible after the filing thereof, but in any event no later than 120 days from Closing Date, (the “Effective Date”)possible. The Company shall use will take all action reasonably necessary to continue the listing and trading of its best efforts to keep Common Stock on a Trading Market and will comply in all respects with the Registration Statement continuously effective Company’s reporting, filing and other obligations under the Securities Act until bylaws or rules of the date which is Trading Market. Subject to the earlier date terms of when (i) the Transaction Documents, the Company further covenants that it will take such further action as the Purchaser may reasonably request, all Registrable Securities have been sold or (ii) all Registrable Securities may be sold immediately to the extent required from time to time to enable the Purchaser to sell the Warrant Shares without registration under the Securities Act and without volume restrictions pursuant to Rule 144, as determined by within 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 Holders. In the event that the Company (i) fails to file a Registration Statement covering the resale limitation of the Registrable Securities, or such Registration Statement is not effective exemptions provided by Rule 144 promulgated under the Effective Date, or (ii) thereafter fails to cause such Registration Statement to remain effective with respect to the Registrable Securities, as provided for above, the Company shall, at Securities Act. Upon the request of a Subscriber, use its best efforts to enable such Subscriber to transfer its Registrable Securities pursuant to Rule 144.
(i) If, unless due to a fault of a Subscriber (i) a Registration Statement is not filed on or prior to the Filing Date, or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before the Effective Date, (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs being referred to as “Event Date”), then in addition to any other rights the Subscribers may have hereunder or under applicable law, for all or part of each 30-calendar day period in which any Event remains uncuredPurchaser, the Company shall pay to each Subscriber an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by such Subscriber pursuant to this Subscription Agreement for any Registrable Securities then held by such Subscriber that are not otherwise eligible for resale, subject to an overall limit of partial liquidated damages in the aggregate of 6% of the aggregate purchase price paid by such Subscriber provided, however, that (a) in the case of (ii), if the Commission does not declare the Registration Statement effective on or before the Effectiveness Date, or (b), if the Commission allows the Registration Statement to be declared effective at any time before or after the Effectiveness Date, subject deliver to the withdrawal Purchaser a written certification of certain Registrable Securities from the Registration Statement, and the reason for (a) or (b) is the SEC’s determination that (x) the offering of any of the Registrable Securities constitutes a primary offering of securities by the Company, (y) Rule 415 may not be relied upon for the registration of any or all of the Registrable Securities, and/or (z) a holder of any Registrable Securities must be named duly authorized officer as an underwriter, the Subscribers understand and agree that the Company may reduce, on a pro rata basis, the total number of Registrable Securities to be registered on behalf of each such Subscriber, beginning whether it has complied with the Conversion Shares, and the failure to include such Registrable Securities in any Registration Statement shall not constitute an Event and the Company shall not be required to pay any partial liquidated damages as described above. However, the Company agrees to make its best commercially reasonable efforts to file a registration statement with respect to any Registrable Securities belonging to any such affected Subscriber as soon as practicable thereafter. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion issuer requirements of a month prior to the cure of an EventRule 144.
Appears in 1 contract
