Registration Obligations. (a) As promptly as practicable following the Closing Date, the Company shall prepare and file with the SEC a Registration Statement covering the resale of the Registrable Securities as would permit the sale and distribution of all the Registrable Securities from time to time pursuant to Rule 415 in the manner reasonably requested by the Purchaser. The Registration Statement shall be on Form S-1 (or such other form available to the Company for the registration of the Registrable Securities at the time of filing as determined in good faith by counsel of the Company). The Registration Statement shall contain the “Plan of Distribution” section in substantially the form attached hereto as Annex A, subject to any SEC comments; provided, however, that the Purchaser shall not be named as an “underwriter” in the Registration Statement without the Purchaser’s prior written consent. Such Registration Statement also shall cover, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), such indeterminate number of additional shares of Company Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities. Such Registration Statement shall not include any shares of Company Common Stock or other securities for the account of any other holder without the prior written consent of the Purchaser. The Company shall use reasonable best efforts to cause the Registration Statement filed by it to be declared effective by the SEC under the Securities Act as promptly as practicable after the filing thereof but in any event on or prior to the Effectiveness Deadline, and, subject to Section 3.1(m) hereof, to keep such Registration Statement continuously effective under the Securities Act until such date as all Registrable Securities covered by such Registration Statement have ceased to be Registrable Securities (the “Effectiveness Period”). By 5:30 p.m., Eastern time, on the Effective Date, the Company shall file with the SEC in accordance with Rule 424(b)(3) under the Securities Act the final Prospectus to be used in connection with sales pursuant to such Registration Statement. (b) Promptly following the date (the “Qualification Date”) upon which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale, but in no event more than thirty (30) days after the Qualification Date (the “Qualification Deadline”), the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post- effective amendment on Form S-3 to the registration statement on Form S-1) (a “Shelf Registration Statement”) and shall use commercially reasonable efforts to cause such Shelf Registration Statement to be declared effective as promptly as practicable thereafter, provided that the Company shall maintain the effectiveness of all Shelf Registration Statements then in effect and the availability for use of each Prospectus contained therein until such time as a Shelf Registration Statement covering the resale of all the Registrable Securities has been declared effective by the SEC and the Prospectus contained therein is available for use or, if sooner, the expiration of the Effectiveness Period. (c) If (i) a Registration Statement covering the resale of all of the Registrable Securities required to be covered thereby and required to be filed by the Company pursuant to this Agreement is not declared effective by the SEC on or before the Effectiveness Deadline (an “Effectiveness Failure”), (ii) on any day after the Effective Date of a Registration Statement sales of all of the Registrable Securities required to be included on such Registration Statement cannot be made pursuant to such Registration Statement (including, without limitation, because of a failure to keep such Registration Statement effective, a failure to disclose such information as is necessary for sales to be made pursuant to such Registration Statement, a failure to have the shares of Common Stock listed or quoted for trading on Nasdaq (as defined below), any other national securities exchange or any market of the OTC Markets for three (3) consecutive trading days, or a failure to register a sufficient number of shares of Common Stock or by reason of a stop order) or the prospectus contained therein is not properly available for use for any reason (other than because of an Allowed Delay) (collectively, a “Maintenance Failure”), or (iii) a Registration Statement is not effective for any reason, the prospectus contained therein is not properly available for use for any reason, or the Company fails to file with the SEC any required reports under Section 13 or 15(d) of the Exchange Act such that it is not in compliance with Rule 144(c)(1) (or Rule 144(i)(2), if applicable) (other than because of an Allowed Delay) (a “Current Public Information Failure”) as a result of which the Purchaser is unable to sell Registrable Securities without restriction under Rule 144 (including, without limitation, volume restrictions), then, as liquidated relief for the damages to any holder by reason of any such delay in, or reduction of, its ability to sell the underlying shares of Common Stock (which remedy, other than the right o require specific performance, shall be exclusive of all other remedies available at law or in equity), the Company shall pay to each holder of Registrable Securities relating to such Registration Statement an amount in cash equal to one percent (1.0%) of the Share Purchase Price (as defined in the Purchase Agreement): (1) within three (3) days after the date of such Effectiveness Failure, Maintenance Failure or Current Public Information Failure, as applicable; and (2) on every thirty (30) day anniversary of (I) an Effectiveness Failure until such Effectiveness Failure is cured; (II) a Maintenance Failure until such Maintenance Failure is cured; and (III) a Current Public Information Failure until the earlier of (i) the date such Current Public Information Failure is cured and (ii) such time that such public information is no longer required pursuant to Rule 144, in each case of 2(I), (II) and (III), pro-rated for periods totaling less than thirty (30) days. The payments to which a holder of Registrable Securities shall be entitled pursuant to this Section 2(c) are referred to herein as “Registration Delay Payments.” Following the initial Registration Delay Payment for any particular event or failure (which shall be paid on the date of such event or failure, as set forth above), without limiting the foregoing, once an event or failure giving rise to the Registration Delay Payments is cured and all Registration Delay Payments relating thereto have been paid, then no further Registration Delay Payment(s) shall be due after such cure for that particular failure. In the event the Company fails to make Registration Delay Payments in a timely manner in accordance with the foregoing, such Registration Delay Payments shall bear interest at the rate of one percent (1%) per month (prorated for partial months) until paid in full. Notwithstanding the foregoing, no Registration Delay Payments shall be owed to Purchaser: (i) with respect to an Effectiveness Failure, a Maintenance Failure or a Current Public Information Failure, for any period after the earlier of (x) the date on which Purchaser may conduct a resale of all of its Registrable Securities in reliance on a valid exemption from registration in accordance with Rule 144 or (y) the date on which Purchaser sold, transferred or otherwise disposed of all of its Registrable Securities, (ii) with respect to any Registrable Securities excluded from a Registration Statement by election of the Purchaser and (iii) in respect of any Allowed Delay. (d) Other than registration statements relating to an offering for the Company’s own account on Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity securities to be issued solely in connection with any equity securities issuable in connection with the Company’s stock option or other employee benefit plans, pre-effective or post-effective amendments to the Company’s recently filed Form S-4 related to the Gryphon Transaction, and post-effective amendments to existing registration statements to keep them current in accordance with existing registration requirements on the date hereof, the Company shall not file any other registration statement without Purchaser’s advance written consent until after the Effectiveness Date.
Appears in 1 contract
Registration Obligations. If and whenever EGP is obligated by the provisions of this Section 2 to cause the registration of any Registrable Securities under the Securities Act, as expeditiously as reasonably possible EGP will, or will use its best efforts to, as the case may be, cause the Trust to:
(a1) As promptly as practicable following the Closing Date, the Company shall prepare Prepare and file with the SEC a Registration Statement covering registration statement with respect to such Registrable Securities.
(2) Prepare and file with the resale SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective until the earlier of the sale of all Registrable Securities covered thereby and the expiration of a period of nine months after the date such registration statement became effective (except that any registration statement on Form S-3 or similar short-form shall be maintained for not less than two years), and comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such registration statement.
(3) Furnish to each selling Holder such numbers of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents, as such Holder may reasonably request.
(4) Register or qualify the Registrable Securities as would permit the sale and distribution of all the Registrable Securities from time to time pursuant to Rule 415 in the manner reasonably requested covered by the Purchaser. The Registration Statement shall be on Form S-1 (or such registration statement under such other form available securities or blue sky laws of such jurisdictions (subject to the Company for approval of any managing underwriter involved) as the registration selling Holders shall request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such Holders to consummate the disposition in such jurisdictions of the such Registrable Securities at the time of filing as determined in good faith by counsel of the Company). The Registration Statement shall contain the “Plan of Distribution” section in substantially the form attached hereto as Annex A, subject to any SEC commentsSecurities; provided, however, that the Purchaser Trust shall not be named as an “underwriter” in the Registration Statement without the Purchaser’s prior written consent. Such Registration Statement also shall coverobligated, by reason thereof, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), such indeterminate number of additional shares of Company Common Stock resulting from stock splits, stock dividends qualify as a foreign corporation or similar transactions with respect subject itself to the Registrable Securities. Such Registration Statement shall not include any shares of Company Common Stock or other securities for the account of any other holder without the prior written consent of the Purchaser. The Company shall use reasonable best efforts to cause the Registration Statement filed by it to be declared effective by the SEC under the Securities Act taxation as promptly as practicable after the filing thereof but doing business in any event on or prior to the Effectiveness Deadline, and, subject to Section 3.1(m) hereof, to keep such Registration Statement continuously effective under the Securities Act until such date as all Registrable Securities covered by such Registration Statement have ceased to be Registrable Securities (the “Effectiveness Period”). By 5:30 p.m., Eastern time, on the Effective Date, the Company shall file with the SEC in accordance with Rule 424(b)(3) under the Securities Act the final Prospectus to be used in connection with sales pursuant to such Registration Statementjurisdiction.
(b5) Promptly following Notify the date (selling Holders and their counsel promptly after EGP or the “Qualification Date”) upon which the Company becomes eligible to use a Trust shall receive notice that any registration statement, supplement or amendment has become effective, or that any registration statement on Form S-3 to register the Registrable Securities for resale, but in no event more than thirty (30) days after the Qualification Date (the “Qualification Deadline”), the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post- effective amendment on Form S-3 to the registration statement on Form S-1) (a “Shelf Registration Statement”) and shall use commercially reasonable efforts to cause such Shelf Registration Statement to be declared effective as promptly as practicable thereafter, provided that the Company shall maintain the effectiveness of all Shelf Registration Statements then in effect and the availability for use of each Prospectus contained therein until such time as a Shelf Registration Statement covering the resale of all the Registrable Securities has been declared effective by the SEC and the Prospectus contained therein is available for use or, if sooner, the expiration of the Effectiveness Period.
(c) If (i) a Registration Statement covering the resale of all of the Registrable Securities required to be covered thereby and required to be filed by the Company pursuant to this Agreement is not declared effective by the SEC on amended or before the Effectiveness Deadline (an “Effectiveness Failure”), (ii) on any day after the Effective Date of a Registration Statement sales of all of the Registrable Securities required to be included on such Registration Statement cannot be made pursuant to such Registration Statement (including, without limitation, because of a failure to keep such Registration Statement effective, a failure to disclose such information as is necessary for sales to be made pursuant to such Registration Statement, a failure to have the shares of Common Stock listed or quoted for trading on Nasdaq (as defined below), any other national securities exchange or any market of the OTC Markets for three (3) consecutive trading dayssupplemented, or a failure to register a sufficient number of shares of Common Stock or by reason of a that any stop order) or the prospectus contained therein is not properly available for use for any reason (other than because of an Allowed Delay) (collectively, a “Maintenance Failure”), or (iii) a Registration Statement is not effective for any reason, the prospectus contained therein is not properly available for use for any reason, or the Company fails to file with the SEC any required reports under Section 13 or 15(d) of the Exchange Act such that it is not in compliance with Rule 144(c)(1) (or Rule 144(i)(2), if applicable) (other than because of an Allowed Delay) (a “Current Public Information Failure”) as a result of which the Purchaser is unable to sell Registrable Securities without restriction under Rule 144 (including, without limitation, volume restrictions), then, as liquidated relief for the damages to any holder by reason of any such delay in, or reduction of, its ability to sell the underlying shares of Common Stock (which remedy, other than the right o require specific performance, shall be exclusive of all other remedies available at law or in equity), the Company shall pay to each holder of Registrable Securities relating to such Registration Statement an amount in cash equal to one percent (1.0%) of the Share Purchase Price (as defined in the Purchase Agreement): (1) within three (3) days after the date of such Effectiveness Failure, Maintenance Failure or Current Public Information Failure, as applicable; and (2) on every thirty (30) day anniversary of (I) an Effectiveness Failure until such Effectiveness Failure is cured; (II) a Maintenance Failure until such Maintenance Failure is cured; and (III) a Current Public Information Failure until the earlier of (i) the date such Current Public Information Failure is cured and (ii) such time that such public information is no longer required pursuant to Rule 144, in each case of 2(I), (II) and (III), pro-rated for periods totaling less than thirty (30) days. The payments to which a holder of Registrable Securities shall be entitled pursuant to this Section 2(c) are referred to herein as “Registration Delay Paymentsorder has been issued.” Following the initial Registration Delay Payment for any particular event or failure (which shall be paid on the date of such event or failure, as set forth above), without limiting the foregoing, once an event or failure giving rise to the Registration Delay Payments is cured and all Registration Delay Payments relating thereto have been paid, then no further Registration Delay Payment(s) shall be due after such cure for that particular failure. In the event the Company fails to make Registration Delay Payments in a timely manner in accordance with the foregoing, such Registration Delay Payments shall bear interest at the rate of one percent (1%) per month (prorated for partial months) until paid in full. Notwithstanding the foregoing, no Registration Delay Payments shall be owed to Purchaser: (i) with respect to an Effectiveness Failure, a Maintenance Failure or a Current Public Information Failure, for any period after the earlier of (x) the date on which Purchaser may conduct a resale of all of its Registrable Securities in reliance on a valid exemption from registration in accordance with Rule 144 or (y) the date on which Purchaser sold, transferred or otherwise disposed of all of its Registrable Securities, (ii) with respect to any Registrable Securities excluded from a Registration Statement by election of the Purchaser and (iii) in respect of any Allowed Delay.
(d) Other than registration statements relating to an offering for the Company’s own account on Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity securities to be issued solely in connection with any equity securities issuable in connection with the Company’s stock option or other employee benefit plans, pre-effective or post-effective amendments to the Company’s recently filed Form S-4 related to the Gryphon Transaction, and post-effective amendments to existing registration statements to keep them current in accordance with existing registration requirements on the date hereof, the Company shall not file any other registration statement without Purchaser’s advance written consent until after the Effectiveness Date.
Appears in 1 contract
Registration Obligations. In performing its obligations under ------------------------ Article One to register the Registered Shares, Company will, subject to the limitations provided herein, as expeditiously as possible:
(a) As promptly as practicable following the Closing Date, the Company shall prepare and file with the SEC a Commission the Registration Statement covering and use its best efforts to cause such registration to become and remain effective for the resale term specified herein;
(b) prepare and file with the Commission such amendments and supplements to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement effective in accordance with the terms of this Agreement and to comply with the provisions of the Registrable Securities as would permit Act with respect to the sale and distribution disposition of all Registered Shares covered by the Registrable Securities from Registration Statement;
(c) furnish to the Holder one conformed copy of the Registration Statement and of each such amendment and supplement thereto (in each case including all exhibits), one copy of the Prospectus (including each preliminary prospectus and any summary prospectus) and any other Prospectus filed under Rule 424 under the Act, and such other documents, as the Holder may reasonably request;
(d) use its best efforts to (i) register or qualify the Registered Shares under such other securities or blue sky laws of such jurisdictions as the Holder shall reasonably request, (ii) keep such registration or qualification in effect for so long as the Registration Statement remains in effect, and (iii) take any other action which may be reasonably necessary or advisable to enable the Holder to consummate the disposition of the Registered Shares in such jurisdictions, except that the Company shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this Section 2.1(d) be obligated to be so qualified, to consent to general service of process in any such jurisdiction, or to take any such action which would impose unreasonable expense on the Company;
(e) notify the Holders at any time when a Prospectus relating to time pursuant the Shares is required to Rule 415 be delivered under the Act, upon discovery that, or upon the happening of any event as a result of which, the Prospectus included in the manner Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and prepare and furnish to the Holders one copy of a supplement to or an amendment of such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made;
(f) provide and cause to be maintained a transfer agent for the Common Stock from and after a date not later than the effective date of the Registration Statement;
(g) properly notify any securities exchange on which any of the Company's Common Stock is listed of the registration of any of the Registered Shares, and use its best efforts to satisfy all prerequisites and regulations of any such exchange relating to the trading of such Registered Shares on such exchange; and
(h) make available for inspection by the Holders, and any one attorney, accountant or other agent retained by the Holders of Registered Shares, as a group, (the "Inspector"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information reasonably requested by the Purchaser. The Registration Statement shall be on Form S-1 (or any such other form available to Inspector in connection with such registration statement; provided that records which the Company for the registration of the Registrable Securities at the time of filing as determined determines, in good faith by counsel of faith, to be confidential and which it notifies the Company). The Registration Statement shall contain the “Plan of Distribution” section in substantially the form attached hereto as Annex A, subject to any SEC comments; provided, however, that the Purchaser Inspector are confidential shall not be named as an “underwriter” disclosed by the Inspector unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the Registration Statement without the Purchaser’s prior written consent. Such Registration Statement also shall cover, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), such indeterminate number of additional shares of Company Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities. Such Registration Statement shall not include any shares of Company Common Stock or other securities for the account of any other holder without the prior written consent of the Purchaser. The Company shall use reasonable best efforts to cause the Registration Statement filed by it to be declared effective by the SEC under the Securities Act as promptly as practicable after the filing thereof but in any event on or prior to the Effectiveness Deadline, and, subject to Section 3.1(m) hereof, to keep such Registration Statement continuously effective under the Securities Act until such date as all Registrable Securities covered by such Registration Statement have ceased to be Registrable Securities (the “Effectiveness Period”). By 5:30 p.m., Eastern time, on the Effective Date, the Company shall file with the SEC in accordance with Rule 424(b)(3) under the Securities Act the final Prospectus to be used in connection with sales pursuant to such Registration Statement.
(b) Promptly following the date (the “Qualification Date”) upon which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale, but in no event more than thirty (30) days after the Qualification Date (the “Qualification Deadline”), the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post- effective amendment on Form S-3 to the registration statement on Form S-1) (a “Shelf Registration Statement”) and shall use commercially reasonable efforts to cause such Shelf Registration Statement to be declared effective as promptly as practicable thereafter, provided that the Company shall maintain the effectiveness of all Shelf Registration Statements then in effect and the availability for use of each Prospectus contained therein until such time as a Shelf Registration Statement covering the resale of all the Registrable Securities has been declared effective by the SEC and the Prospectus contained therein is available for use or, if sooner, the expiration of the Effectiveness Period.
(c) If (i) a Registration Statement covering the resale of all of the Registrable Securities required to be covered thereby and required to be filed by the Company pursuant to this Agreement is not declared effective by the SEC on or before the Effectiveness Deadline (an “Effectiveness Failure”), (ii) on any day after the Effective Date release of such Records is ordered pursuant to a Registration Statement sales subpoena or other order from a court of all competent jurisdiction; provided, further, the Holders agree that they will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Registrable Securities required to be included on such Registration Statement cannot be made pursuant to such Registration Statement (including, without limitation, because of a failure to keep such Registration Statement effective, a failure to disclose such information as is necessary for sales to be made pursuant to such Registration Statement, a failure to have the shares of Common Stock listed or quoted for trading on Nasdaq (as defined below), any other national securities exchange or any market of the OTC Markets for three (3) consecutive trading days, or a failure to register a sufficient number of shares of Common Stock or by reason of a stop order) or the prospectus contained therein is not properly available for use for any reason (other than because of an Allowed Delay) (collectively, a “Maintenance Failure”), or (iii) a Registration Statement is not effective for any reason, the prospectus contained therein is not properly available for use for any reason, or the Company fails to file with the SEC any required reports under Section 13 or 15(d) of the Exchange Act such that it is not in compliance with Rule 144(c)(1) (or Rule 144(i)(2), if applicable) (other than because of an Allowed Delay) (a “Current Public Information Failure”) as a result of which the Purchaser is unable to sell Registrable Securities without restriction under Rule 144 (including, without limitation, volume restrictions), then, as liquidated relief for the damages to any holder by reason of any such delay in, or reduction of, its ability to sell the underlying shares of Common Stock (which remedy, other than the right o require specific performance, shall be exclusive of all other remedies available at law or in equity), the Company shall pay to each holder of Registrable Securities relating to such Registration Statement an amount in cash equal to one percent (1.0%) of the Share Purchase Price (as defined in the Purchase Agreement): (1) within three (3) days after the date of such Effectiveness Failure, Maintenance Failure or Current Public Information Failure, as applicable; and (2) on every thirty (30) day anniversary of (I) an Effectiveness Failure until such Effectiveness Failure is cured; (II) a Maintenance Failure until such Maintenance Failure is cured; and (III) a Current Public Information Failure until the earlier of (i) the date such Current Public Information Failure is cured and (ii) such time that such public information is no longer required pursuant to Rule 144, in each case of 2(I), (II) and (III), pro-rated for periods totaling less than thirty (30) days. The payments to which a holder of Registrable Securities shall be entitled pursuant to this Section 2(c) are referred to herein as “Registration Delay PaymentsRecords deemed confidential.” Following the initial Registration Delay Payment for any particular event or failure (which shall be paid on the date of such event or failure, as set forth above), without limiting the foregoing, once an event or failure giving rise to the Registration Delay Payments is cured and all Registration Delay Payments relating thereto have been paid, then no further Registration Delay Payment(s) shall be due after such cure for that particular failure. In the event the Company fails to make Registration Delay Payments in a timely manner in accordance with the foregoing, such Registration Delay Payments shall bear interest at the rate of one percent (1%) per month (prorated for partial months) until paid in full. Notwithstanding the foregoing, no Registration Delay Payments shall be owed to Purchaser: (i) with respect to an Effectiveness Failure, a Maintenance Failure or a Current Public Information Failure, for any period after the earlier of (x) the date on which Purchaser may conduct a resale of all of its Registrable Securities in reliance on a valid exemption from registration in accordance with Rule 144 or (y) the date on which Purchaser sold, transferred or otherwise disposed of all of its Registrable Securities, (ii) with respect to any Registrable Securities excluded from a Registration Statement by election of the Purchaser and (iii) in respect of any Allowed Delay.
(d) Other than registration statements relating to an offering for the Company’s own account on Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity securities to be issued solely in connection with any equity securities issuable in connection with the Company’s stock option or other employee benefit plans, pre-effective or post-effective amendments to the Company’s recently filed Form S-4 related to the Gryphon Transaction, and post-effective amendments to existing registration statements to keep them current in accordance with existing registration requirements on the date hereof, the Company shall not file any other registration statement without Purchaser’s advance written consent until after the Effectiveness Date.
Appears in 1 contract
Registration Obligations. (a) As promptly Obligations of the Company. The Company will, in connection with -------------------------- any registration pursuant to Section 2 hereof:
(i) Prepare and file with the Securities and Exchange Commission (the "Commission") a Registration Statement with respect to the Registerable Securities in accordance with the method or methods of distribution thereof as practicable following specified by the Closing DateRightsholder (except if otherwise directed by the Rightsholder); provided, however, that not less than three business days prior to the filing of such Registration Statement or any related prospectus or any amendment or supplement thereto (including any document that would be incorporated therein by reference), the Company shall (A) furnish to the Rightsholder and its legal counsel, copies of all such documents proposed to be filed, and (B) at the request of the Rightsholder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to the Rightsholder, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall prepare and file with the SEC Commission such post-effective amendments and supplements to the Registration Statement as may be necessary to keep the Registration Statement continuously effective as to the applicable Registerable Securities until (A) such the securities cease to be Registerable Securities or (B) two (2) years after the effective date of the Registration Statement, whichever is earlier. Rightsholder will reimburse the Company for any reasonable out of pocket expenses that the Company may incur for preparing and filing with the Commission such post-effective amendments and supplements, other than ordinary filing and administrative expenses associated with preparing and filing such post-effective amendments and supplements, if IT&S fails to compensate the Company for such expenses, as provided in Section 3 of this Agreement, within 45 days after a request for compensation is made to IT&S by the Company. Upon Rightsholder providing such compensation, Rightsholder will succeed the Company in the Company's right to collect such expenses from IT&S.
(ii) Notify the Rightsholder and its legal counsel as promptly as possible (A) with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (B) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement covering the resale any or all of the Registrable Registerable Securities or the initiation of any action, claim, suit, investigation or proceeding (including, without limitation, an investigation or partial proceeding, such as would permit a deposition), whether commenced or threatened (each, a "Proceeding") for that purpose; (C) 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 Registerable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose; and distribution (D) of all the Registrable Securities from time to time pursuant to Rule 415 occurrence of any event that makes any statement made in the manner reasonably Registration Statement or prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, prospectus or other documents so that, in the case of the Registration Statement or the prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iii) Furnish to the Rightsholder and its legal counsel, without charge, at least one conformed copy of the Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits to the extent requested by such person (including those previously furnished or incorporated by reference) promptly after the Purchaser. The filing of such documents with the Commission.
(iv) Prior to any public offering of the Registerable Securities, use reasonable efforts to register or qualify or cooperate with the Rightsholder and its legal counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registerable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the Rightsholder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the period when the Registration Statement shall be on Form S-1 (is effective and to do any and all other acts or things necessary or advisable to enable the disposition in such other form available to the Company for the registration jurisdictions of the Registrable Registerable Securities at covered by the time of filing as determined in good faith by counsel of the Company). The Registration Statement shall contain the “Plan of Distribution” section in substantially the form attached hereto as Annex A, subject to any SEC commentsStatement; provided, however, that the Purchaser Company shall not be named -------- ------- required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(v) Cooperate with the Rightsholder to facilitate the timely preparation and delivery of certificates representing Registerable Securities that Rightsholder confirms to have been sold pursuant to the Registration Statement, which certificates shall be free of all restrictive legends, and to enable such Registerable Securities to be in such denominations and registered in such names as an “underwriter” in the Rightsholder may request.
(vi) Use its reasonable efforts to cause all Registerable Securities relating to the Registration Statement without to be listed on any securities exchange, quotation system or market (including Nasdaq), if any, on which similar securities issued by the Purchaser’s prior written consent. Such Registration Statement also shall cover, Company are then listed.
(vii) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earning statements satisfying the extent allowable under provisions of Section 11(a) of the Securities Act and the rules promulgated thereunder (including Rule 416), such indeterminate number of additional shares of Company Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities. Such Registration Statement shall 158 not include any shares of Company Common Stock or other securities for the account of any other holder without the prior written consent of the Purchaser. The Company shall use reasonable best efforts to cause the Registration Statement filed by it to be declared effective by the SEC under the Securities Act as promptly as practicable after the filing thereof but in any event on or prior to the Effectiveness Deadline, and, subject to Section 3.1(m) hereof, to keep such Registration Statement continuously effective under the Securities Act until such date as all Registrable Securities covered by such Registration Statement have ceased to be Registrable Securities (the “Effectiveness Period”). By 5:30 p.m., Eastern time, on the Effective Date, the Company shall file with the SEC in accordance with Rule 424(b)(3) under the Securities Act the final Prospectus to be used in connection with sales pursuant to such Registration Statement.
(b) Promptly following the date (the “Qualification Date”) upon which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale, but in no event more later than thirty (30) 45 days after the Qualification Date end of any 12-month period (or 90 days after the “Qualification Deadline”), end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company shall file a registration statement on Form S-3 covering after the Registrable Securities (or a post- effective amendment on Form S-3 to the registration statement on Form S-1) (a “Shelf Registration Statement”) and shall use commercially reasonable efforts to cause such Shelf Registration Statement to be declared effective as promptly as practicable thereafter, provided that the Company shall maintain the effectiveness of all Shelf Registration Statements then in effect and the availability for use of each Prospectus contained therein until such time as a Shelf Registration Statement covering the resale of all the Registrable Securities has been declared effective by the SEC and the Prospectus contained therein is available for use or, if sooner, the expiration date of the Effectiveness Period.
(c) If (i) a Registration Statement covering the resale of all of the Registrable Securities required to be covered thereby and required to be filed by the Company pursuant to this Agreement is not declared effective by the SEC on or before the Effectiveness Deadline (an “Effectiveness Failure”), (ii) on any day after the Effective Date of a Registration Statement sales of all of the Registrable Securities required to be included on such Registration Statement cannot be made pursuant to such Registration Statement (including, without limitation, because of a failure to keep such Registration Statement effective, a failure to disclose such information as is necessary for sales to be made pursuant to such Registration Statement, a failure to have the shares of Common Stock listed or quoted for trading on Nasdaq (as defined below), any other national securities exchange or any market of the OTC Markets for three (3) consecutive trading days, or a failure to register a sufficient number of shares of Common Stock or by reason of a stop order) or the prospectus contained therein is not properly available for use for any reason (other than because of an Allowed Delay) (collectively, a “Maintenance Failure”), or (iii) a Registration Statement is not effective for any reason, the prospectus contained therein is not properly available for use for any reason, or the Company fails to file with the SEC any required reports under Section 13 or 15(d) of the Exchange Act such that it is not in compliance with Rule 144(c)(1) (or Rule 144(i)(2), if applicable) (other than because of an Allowed Delay) (a “Current Public Information Failure”) as a result of which the Purchaser is unable to sell Registrable Securities without restriction under Rule 144 (including, without limitation, volume restrictions), then, as liquidated relief for the damages to any holder by reason of any such delay in, or reduction of, its ability to sell the underlying shares of Common Stock (which remedy, other than the right o require specific performance, statement shall be exclusive of all other remedies available at law or in equity), the Company shall pay to each holder of Registrable Securities relating to such Registration Statement an amount in cash equal to one percent (1.0%) of the Share Purchase Price (as defined in the Purchase Agreement): (1) within three (3) days after the date of such Effectiveness Failure, Maintenance Failure or Current Public Information Failure, as applicable; and (2) on every thirty (30) day anniversary of (I) an Effectiveness Failure until such Effectiveness Failure is cured; (II) a Maintenance Failure until such Maintenance Failure is cured; and (III) a Current Public Information Failure until the earlier of (i) the date such Current Public Information Failure is cured and (ii) such time that such public information is no longer required pursuant to Rule 144, in each case of 2(I), (II) and (III), pro-rated for periods totaling less than thirty (30) days. The payments to which a holder of Registrable Securities shall be entitled pursuant to this Section 2(c) are referred to herein as “Registration Delay Payments.” Following the initial Registration Delay Payment for any particular event or failure (which shall be paid on the date of such event or failure, as set forth above), without limiting the foregoing, once an event or failure giving rise conform to the Registration Delay Payments is cured and all Registration Delay Payments relating thereto have been paid, then no further Registration Delay Payment(s) shall be due after such cure for that particular failure. In the event the Company fails to make Registration Delay Payments in a timely manner in accordance with the foregoing, such Registration Delay Payments shall bear interest at the rate requirements of one percent (1%) per month (prorated for partial months) until paid in full. Notwithstanding the foregoing, no Registration Delay Payments shall be owed to Purchaser: (i) with respect to an Effectiveness Failure, a Maintenance Failure or a Current Public Information Failure, for any period after the earlier of (x) the date on which Purchaser may conduct a resale of all of its Registrable Securities in reliance on a valid exemption from registration in accordance with Rule 144 or (y) the date on which Purchaser sold, transferred or otherwise disposed of all of its Registrable Securities, (ii) with respect to any Registrable Securities excluded from a Registration Statement by election of the Purchaser and (iii) in respect of any Allowed Delay158.
(d) Other than registration statements relating to an offering for the Company’s own account on Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity securities to be issued solely in connection with any equity securities issuable in connection with the Company’s stock option or other employee benefit plans, pre-effective or post-effective amendments to the Company’s recently filed Form S-4 related to the Gryphon Transaction, and post-effective amendments to existing registration statements to keep them current in accordance with existing registration requirements on the date hereof, the Company shall not file any other registration statement without Purchaser’s advance written consent until after the Effectiveness Date.
Appears in 1 contract
Samples: Registration Rights Agreement (Sigma Opportunity Fund LLC)
Registration Obligations. (a) As promptly as practicable following Whenever the Closing DateCompany is required to effect the registration of Registrable Securities under the Securities Act pursuant to this Article IV, the Company shall use its best efforts to effect the registration of the applicable Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto, and the Company shall have the following obligations:
(a) Promptly prepare and file with the SEC a Registration Statement covering with respect to all the resale Registrable Securities required to be covered by such Registration Statement (but in no event later than the applicable Filing Deadline) and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable after such filing (but in no event later than the Effectiveness Deadline). Subject only to Allowable Suspension Periods with respect to a Shelf Registration Statement, the Company shall use it reasonable best efforts to keep each Registration Statement effective (and the prospectus contained therein available for use) (and if such offering is under a Shelf Registration Statement, such effectiveness shall be pursuant to Rule 415 for resales by the Holders), at all times until, as applicable, (i) if such Registration Statement is not a Shelf Registration Statement, one (1) year after the Effective Date of such Registration Statement or (ii) if such Registration Statement is a Shelf Registration Statement, the date on which the Holders shall have sold all of the Registrable Securities as covered by such Shelf Registration Statement (the “Registration Period”). Subject only to Allowable Suspension Periods with respect to a Shelf Registration Statement, the Company shall not be deemed to have used its reasonable best efforts to keep a Registration Statement effective during the Registration Period for such Registration Statement if the Company voluntarily takes any action or omits to take any action that would permit the sale result in any Holder not being able to offer and distribution sell any of all the such Holder’s Registrable Securities from time included in such Shelf Registration Statement during the Registration Period for such Shelf Registration Statement. Notwithstanding anything to time the contrary contained in this Agreement, the Company shall ensure that, when filed and at all times while effective, each Registration Statement (including, without limitation, all amendments and supplements thereto) and the prospectus (including, without limitation, all amendments and supplements thereto) used in connection with such Registration Statement (1) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein (in the case of prospectuses, in the light of the circumstances in which they were made) not misleading and (2) will disclose (whether directly or through incorporation by reference to other SEC filings to the extent permitted) all material information regarding the Company and its securities.
(b) Promptly prepare and file with the SEC such amendments (including, without limitation, post-effective amendments) and supplements to each Registration Statement and the prospectus used in connection with each such Registration Statement, which prospectus is to be filed pursuant to Rule 415 424 promulgated under the Securities Act, as may be necessary to keep each such Registration Statement effective at all times during the Registration Period for such Registration Statement, and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company required to be covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the manner reasonably requested intended methods of disposition by the Purchaser. The seller or sellers thereof as set forth in such Registration Statement shall be on Form S-1 (or such other form available to the Company for the registration of the Registrable Securities at the time of filing as determined in good faith by counsel of the Company). The Registration Statement shall contain the “Plan of Distribution” section in substantially the form attached hereto as Annex A, subject to any SEC commentsStatement; provided, however, that the Purchaser shall not be named as an “underwriter” in the Registration Statement without the Purchaser’s prior written consent. Such Registration Statement also shall cover, to the extent allowable under the Securities Act and the rules promulgated thereunder by 8:30 a.m. (including Rule 416), such indeterminate number of additional shares of Company Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities. Such Registration Statement shall not include any shares of Company Common Stock or other securities for the account of any other holder without the prior written consent of the Purchaser. The Company shall use reasonable best efforts to cause the Registration Statement filed by it to be declared effective by the SEC under the Securities Act as promptly as practicable after the filing thereof but in any event on or prior to the Effectiveness Deadline, and, subject to Section 3.1(mNew York time) hereof, to keep such Registration Statement continuously effective under the Securities Act until such date as all Registrable Securities covered by such Registration Statement have ceased to be Registrable Securities (the “Effectiveness Period”). By 5:30 p.m., Eastern time, on the Business Day immediately following each Effective Date, the Company shall file with the SEC in accordance with Rule 424(b)(3424(b) under the Securities Act the final Prospectus prospectus to be used in connection with sales pursuant to the applicable Registration Statement (whether or not such Registration Statementa prospectus is technically required by such rule).
(bc) Promptly following notify the date Holders holding Registrable Securities when the applicable Registration Statement or any amendment thereto has been filed or becomes effective, and when the applicable prospectus or any amendment or supplement to such prospectus has been filed, but, in each case, in no event later than one (1) Business Day thereafter.
(d) Promptly notify the “Qualification Date”Holders holding Registrable Securities of, and provide copies of, (i) upon which any written comments by the SEC or any request by the SEC or any other federal or state governmental authority for amendments or supplements to such Registration Statement or such prospectus or for additional information, (ii) any stop order suspending the effectiveness of such Registration Statement or any order by the SEC or any other regulatory authority preventing or suspending the use of any preliminary or final prospectus or the initiation or threatening of any proceedings for such purposes, and (iii) the receipt by the Company becomes eligible of any notification with respect to use a registration statement on Form S-3 to register the suspension of the qualification of the Registrable Securities for resale, but offering or sale in no event more than thirty any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(30e) days after Promptly notify the Qualification Date (the “Qualification Deadline”), Holders holding Registrable Securities when the Company becomes aware of the happening of any event as a result of which the applicable Registration Statement or the prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such prospectus and any preliminary prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file a registration statement on Form S-3 covering with the SEC an amendment or supplement to such Registration Statement and prospectus which shall correct such misstatement or omission or effect such compliance.
(f) (i) Use its reasonable best efforts to prevent the issuance of any stop order or other suspension of effectiveness of each Registration Statement or the use of any prospectus contained therein, or the suspension of the qualification, or the loss of an exemption from qualification, of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and (ii) promptly notify each Holder holding Registrable Securities included therein of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
(g) Promptly incorporate in a post- prospectus supplement or post-effective amendment on Form S-3 such information as the sole or lead managing Underwriter, if any, or any of the Holders of Registrable Securities included in such Underwritten Offering determine should be included therein relating to the registration statement on Form S-1plan of distribution with respect to the applicable Registrable Securities.
(h) Promptly deliver to the Holders holding Registrable Securities and each Underwriter, if any, without charge, as many copies of the applicable prospectus (a “Shelf Registration Statement”including each preliminary prospectus) and shall any amendment or supplement thereto as a Holder holding Registrable Securities or Underwriter may reasonably request (it being understood that the Company consents to the use commercially of such prospectus or any amendment or supplement thereto by such Holders and the Underwriter, if any, in connection with the offering and sale of the Registrable Securities covered by such prospectus or any amendment or supplement thereto) and such other documents as a Holder including Registrable Securities therein may reasonably request in order to facilitate the disposition of such Holder’s Registrable Securities.
(i) On or prior to the date on which the applicable Registration Statement is declared effective, use its reasonable best efforts to cause such Shelf Registration Statement Registrable Securities (i) to be declared effective registered, approved or qualified for offer and sale under the securities or “Blue Sky” laws of each state and other jurisdiction of the United States as promptly either a Holder including Registrable Securities therein or the sole or lead managing Underwriter may reasonably request and (ii) to be registered with or approved by such other governmental agencies or authorities as practicable thereaftermay be necessary to enable the seller or sellers thereof or the Underwriter(s), if any, to consummate the disposition of the Registrable Securities, and in each case to do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for such period as may be reasonably required, provided that the Company shall maintain the effectiveness not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to taxation or general service of all Shelf Registration Statements process in any such jurisdiction where it is not then in effect and the availability for use of each Prospectus contained therein until such time as a Shelf Registration Statement covering the resale of all the Registrable Securities has been declared effective by the SEC and the Prospectus contained therein is available for use or, if sooner, the expiration of the Effectiveness Periodso subject.
(cj) If Enter into such customary agreements (including underwriting and indemnification agreements) and take all such other actions as a Holder holding Registrable Securities or the sole or lead managing Underwriter, if any, reasonably requests in order to expedite or facilitate the registration and disposition of the Registrable Securities.
(k) Obtain for delivery to the Holders holding Registrable Securities and to the Underwriter(s), if any, an opinion or opinions from counsel for the Company dated the Effective Date of the applicable Registration Statement or, in the event of an Underwritten Offering, the date of the closing under the underwriting agreement, in customary form, scope and substance, which opinions shall be reasonably satisfactory to the Holders including Registrable Securities therein or Underwriter(s), as the case may be.
(l) Upon the written request of a Holder holding Registrable Securities, the Company shall make available for inspection by (i) a Registration Statement covering the resale of all of the Registrable Securities required to be covered thereby and required to be filed by the Company pursuant to this Agreement is not declared effective by the SEC on or before the Effectiveness Deadline (an “Effectiveness Failure”)such Holder, (ii) on legal counsel for such Holder and (iii) one (1) firm of accountants or other agents retained by such Holder (collectively, the “Inspectors”), all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably deemed necessary by each Inspector, and cause the Company’s officers, directors and employees to supply all information which any Inspector may reasonably request; provided, however, each Inspector shall agree in writing to hold in strict confidence and not to make any disclosure (except to such Holder) or use of any Record or other information which the Board of Directors determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (1) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required under the Securities Act, (2) the release of such Records is ordered pursuant to a final, non-appealable subpoena or order from a court or government body of competent jurisdiction, or (3) the information in such Records has been made generally available to the public. Such Holder agrees that it shall, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction or through other means, to the extent legally permissible give prompt notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidential. Nothing herein shall be deemed to limit any Holder’s ability to sell Registrable Securities in a manner which is otherwise consistent with applicable laws and regulations.
(m) In the case of an Underwritten Offering, obtain for delivery to the Company and the sole or lead managing Underwriter, with copies to the Holders including Registrable Securities in such Underwritten Offering, a cold comfort letter from the Company’s independent certified public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters as the managing underwriter may reasonably request, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement.
(n) Use its reasonable best efforts to cause the Registrable Securities covered by a Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities.
(o) Make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with, and in the manner provided by, the provisions of Rule 158 under the Securities Act) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the applicable Effective Date of each Registration Statement.
(p) Notwithstanding anything to the contrary herein, at any time after the Effective Date of a particular Registration Statement, the Company may delay the disclosure of material, non-public information concerning the Company or any of its subsidiaries the disclosure of which at the time is not, in the good faith opinion of the Board of Directors, in the best interest of the Company and, in the opinion of counsel to the Company, otherwise required (a “Suspension Period”), provided that the Company shall promptly notify the Holders of Registrable Securities included in such Registration Statement sales in writing of the (i) existence of material, non-public information giving rise to a Suspension Period (provided that in each such notice the Company shall not disclose the content of such material, non-public information to any of such Holders) and the date on which such Suspension Period will begin and (ii) date on which such Suspension Period ends, provided further that no Suspension Period shall exceed fifteen (15) consecutive days and during any three hundred sixty five (365) day period all such Suspension Periods shall not exceed an aggregate of thirty (30) days, (each, an “Allowable Suspension Period”). For purposes of determining the length of a Suspension Period above, such Suspension Period shall begin on and include the date such Holders receive the notice referred to in clause (i) above and shall end on and include the later of the date such Holders receive the notice referred to in clause (ii) above and the date referred to in such notice. The provisions of Section 4.3(f) hereof shall not be applicable during the period of any Allowable Suspension Period. Upon expiration of each Suspension Period, the Company shall again be bound by Section 4.3(e) with respect to the information giving rise thereto unless such material, non-public information is no longer applicable.
(q) Take any and all other actions as may be reasonably requested by the Holders including Registrable Securities in the applicable Registration Statement and the sole or lead managing Underwriter, if any, to facility the sale of the Registrable Securities required to be included on such Registration Statement cannot be made pursuant to such Registration Statement (including, without limitation, because of a failure to keep such Registration Statement effective, a failure to disclose such information as is necessary for sales to be made pursuant to such Registration Statement, a failure to have the shares of Common Stock listed or quoted for trading on Nasdaq (as defined below), any other national securities exchange or any market of the OTC Markets for three (3) consecutive trading days, or a failure to register a sufficient number of shares of Common Stock or by reason of a stop order) or the prospectus contained therein is not properly available for use for any reason (other than because of an Allowed Delay) (collectively, a “Maintenance Failure”), or (iii) a Registration Statement is not effective for any reason, the prospectus contained therein is not properly available for use for any reason, or the Company fails to file with the SEC any required reports under Section 13 or 15(d) of the Exchange Act such that it is not in compliance with Rule 144(c)(1) (or Rule 144(i)(2), if applicable) (other than because of an Allowed Delay) (a “Current Public Information Failure”) as a result of which the Purchaser is unable to sell Registrable Securities without restriction under Rule 144 (including, without limitation, volume restrictions), then, as liquidated relief for the damages to any holder by reason of any such delay in, or reduction of, its ability to sell the underlying shares of Common Stock (which remedy, other than the right o require specific performance, shall be exclusive of all other remedies available at law or in equity), the Company shall pay to each holder of Registrable Securities relating to such Registration Statement an amount in cash equal to one percent (1.0%) of the Share Purchase Price (as defined in the Purchase Agreement): (1) within three (3) days after the date of such Effectiveness Failure, Maintenance Failure or Current Public Information Failure, as applicable; and (2) on every thirty (30) day anniversary of (I) an Effectiveness Failure until such Effectiveness Failure is cured; (II) a Maintenance Failure until such Maintenance Failure is cured; and (III) a Current Public Information Failure until the earlier of (i) the date such Current Public Information Failure is cured and (ii) such time that such public information is no longer required pursuant to Rule 144, in each case of 2(I), (II) and (III), pro-rated for periods totaling less than thirty (30) days. The payments to which a holder of Registrable Securities shall be entitled pursuant to this Section 2(c) are referred to herein as “Registration Delay Payments.” Following the initial Registration Delay Payment for any particular event or failure (which shall be paid on the date of such event or failure, as set forth above), without limiting the foregoing, once an event or failure giving rise to the Registration Delay Payments is cured and all Registration Delay Payments relating thereto have been paid, then no further Registration Delay Payment(s) shall be due after such cure for that particular failure. In the event the Company fails to make Registration Delay Payments in a timely manner in accordance with the foregoing, such Registration Delay Payments shall bear interest at the rate of one percent (1%) per month (prorated for partial months) until paid in full. Notwithstanding the foregoing, no Registration Delay Payments shall be owed to Purchaser: (i) with respect to an Effectiveness Failure, a Maintenance Failure or a Current Public Information Failure, for any period after the earlier of (x) the date on which Purchaser may conduct a resale of all of its Registrable Securities in reliance on a valid exemption from registration in accordance with Rule 144 or (y) the date on which Purchaser sold, transferred or otherwise disposed of all of its Registrable Securities, (ii) with respect to any Registrable Securities excluded from a Registration Statement by election of the Purchaser and (iii) in respect of any Allowed Delay.
(d) Other than registration statements relating to an offering for the Company’s own account on Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity securities to be issued solely in connection with any equity securities issuable in connection with the Company’s stock option or other employee benefit plans, pre-effective or post-effective amendments to the Company’s recently filed Form S-4 related to the Gryphon Transaction, and post-effective amendments to existing registration statements to keep them current in accordance with existing registration requirements on the date hereof, the Company shall not file any other registration statement without Purchaser’s advance written consent until after the Effectiveness Date.
Appears in 1 contract
Registration Obligations. The Company covenants and agrees:
(a) As promptly If, at any time, Holder requests that the Company file a registration statement under the Securities Act of 1933 (the "Securities Act"), as soon as practicable following the Closing Date, thereafter the Company shall prepare and use its best efforts to file a registration statement with the SEC a Registration Statement covering the resale respect to any or all of the Registrable Securities as would Common Stock issuable upon exercise of the Warrants (the "Warrant Shares"), (whether for primary offering and sale by the Company to the Holder, or for a subsequent secondary offering and sale by the Holder), that the Company has been so requested to include and obtain the effectiveness thereof, and to take all other action necessary under any Federal or state law or regulation to permit the sale and distribution of all the Registrable Securities from time to time pursuant to Rule 415 Warrant Shares specified in the manner reasonably requested by notice of the Purchaser. The Registration Statement shall Holder to be on Form S-1 (sold or such other form available to otherwise disposed of, and the Company shall maintain such compliance with each such Federal and state law and regulation for the registration of period necessary for Holder to effect the Registrable Securities at the time of filing as determined in good faith by counsel of the Company). The Registration Statement shall contain the “Plan of Distribution” section in substantially the form attached hereto as Annex A, subject to any SEC commentsproposed sale or other disposition; provided, however, that the Purchaser Company shall not be named as an “underwriter” in the Registration Statement without the Purchaser’s prior written consent. Such Registration Statement also shall cover, entitled to defer such registration for a period of up to 90 days if and to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416)that its Board of Directors shall determine that such registration would interfere with a pending corporate transaction. The Holder shall be entitled to register, such indeterminate number of additional shares of Company Common Stock resulting from stock splitsre-register or qualify, stock dividends all or similar transactions with respect to the Registrable Securities. Such Registration Statement shall not include any shares of Company Common Stock or other securities for the account of any other holder without the prior written consent portion of the Purchaser. The Company shall use reasonable best efforts to cause the Registration Statement filed by it to be declared effective by the SEC under the Securities Act as promptly as practicable after the filing thereof but in any event on or prior to the Effectiveness DeadlineWarrant Shares, and, subject to Section 3.1(m) hereof, to keep such Registration Statement continuously effective under the Securities Act until such date as all Registrable Securities covered by such Registration Statement have ceased to be Registrable Securities (the “Effectiveness Period”). By 5:30 p.m., Eastern time, on the Effective Date, and the Company shall file with be required to effect a registration, re-registration or qualification as requested by the SEC in accordance with Rule 424(b)(3) under the Securities Act the final Prospectus to be used in connection with sales Holder pursuant to such Registration Statementthis subsection 3.1(a) on four occasions.
(b) Promptly following If at any time or from time to time prior to the date on which this Warrant expires persuant to section 1.1 (the “Qualification Expiration Date”) upon which ), the Company becomes eligible proposes to use register any of its securities under the Securities Act on any form for the registration of securities under such Act, whether or not for its own account (other than by a registration statement on Form S-3 S-8 or Form S-4 or other form which does not included substantially the same information as would be required in a form for the general registration of securities or would not be available for the Common Stock) (a "Piggyback Registration"), it shall as expeditiously as possible give written notice to register the Registrable Securities for resale, but in no event more than thirty (30) Holder of this intention to do so and of such Holder's rights under this Section 3.1(b). Such rights are referred to hereinafter as "Piggyback Registration Rights." Upon the written request of the Holder made within 20 days after receipt of any such notice (which request shall specify the Qualification Date (the “Qualification Deadline”registrable securities intended to be disposed of by such Holder), the Company shall file a registration statement on Form S-3 covering include in the Registrable Securities (or a post- effective amendment on Form S-3 to the registration statement on Form S-1) (a “Shelf Registration Statement”) and shall use commercially reasonable efforts to cause such Shelf Registration Statement the registrable securities which the Company has been so requested to be declared effective as promptly as practicable thereafter, provided that register by the Holder thereof and the Company shall maintain the effectiveness of all Shelf Registration Statements then keep such registration statement in effect and maintain compliance with each Federal and state law or regulation for the availability for use of each Prospectus contained therein until such time as a Shelf Registration Statement covering the resale of all the Registrable Securities has been declared effective by the SEC and the Prospectus contained therein is available for use or, if sooner, the expiration of the Effectiveness Period.
(c) If (i) a Registration Statement covering the resale of all of the Registrable Securities required to be covered thereby and required to be filed by the Company pursuant to this Agreement is not declared effective by the SEC on or before the Effectiveness Deadline (an “Effectiveness Failure”), (ii) on any day after the Effective Date of a Registration Statement sales of all of the Registrable Securities required to be included on such Registration Statement cannot be made pursuant to such Registration Statement (including, without limitation, because of a failure to keep such Registration Statement effective, a failure to disclose such information as is period necessary for sales such Holder to be made pursuant to such Registration Statement, a failure to have effect the shares of Common Stock listed or quoted for trading on Nasdaq (as defined below), any other national securities exchange or any market of the OTC Markets for three (3) consecutive trading days, or a failure to register a sufficient number of shares of Common Stock or by reason of a stop order) or the prospectus contained therein is not properly available for use for any reason (other than because of an Allowed Delay) (collectively, a “Maintenance Failure”), or (iii) a Registration Statement is not effective for any reason, the prospectus contained therein is not properly available for use for any reason, or the Company fails to file with the SEC any required reports under Section 13 or 15(d) of the Exchange Act such that it is not in compliance with Rule 144(c)(1) (or Rule 144(i)(2), if applicable) (other than because of an Allowed Delay) (a “Current Public Information Failure”) as a result of which the Purchaser is unable to sell Registrable Securities without restriction under Rule 144 (including, without limitation, volume restrictions), then, as liquidated relief for the damages to any holder by reason of any such delay in, or reduction of, its ability to sell the underlying shares of Common Stock (which remedy, other than the right o require specific performance, shall be exclusive of all other remedies available at law or in equity), the Company shall pay to each holder of Registrable Securities relating to such Registration Statement an amount in cash equal to one percent (1.0%) of the Share Purchase Price (as defined in the Purchase Agreement): (1) within three (3) days after the date of such Effectiveness Failure, Maintenance Failure or Current Public Information Failure, as applicable; and (2) on every thirty (30) day anniversary of (I) an Effectiveness Failure until such Effectiveness Failure is cured; (II) a Maintenance Failure until such Maintenance Failure is cured; and (III) a Current Public Information Failure until the earlier of (i) the date such Current Public Information Failure is cured and (ii) such time that such public information is no longer required pursuant to Rule 144, in each case of 2(I), (II) and (III), pro-rated for periods totaling less than thirty (30) days. The payments to which a holder of Registrable Securities shall be entitled pursuant to this Section 2(c) are referred to herein as “Registration Delay Payments.” Following the initial Registration Delay Payment for any particular event or failure (which shall be paid on the date of such event or failure, as set forth above), without limiting the foregoing, once an event or failure giving rise to the Registration Delay Payments is cured and all Registration Delay Payments relating thereto have been paid, then no further Registration Delay Payment(s) shall be due after such cure for that particular failure. In the event the Company fails to make Registration Delay Payments in a timely manner in accordance with the foregoing, such Registration Delay Payments shall bear interest at the rate of one percent (1%) per month (prorated for partial months) until paid in full. Notwithstanding the foregoing, no Registration Delay Payments shall be owed to Purchaser: (i) with respect to an Effectiveness Failure, a Maintenance Failure or a Current Public Information Failure, for any period after the earlier of (x) the date on which Purchaser may conduct a resale of all of its Registrable Securities in reliance on a valid exemption from registration in accordance with Rule 144 or (y) the date on which Purchaser sold, transferred or otherwise disposed of all of its Registrable Securities, (ii) with respect to any Registrable Securities excluded from a Registration Statement by election of the Purchaser and (iii) in respect of any Allowed Delay.
(d) Other than registration statements relating to an offering for the Company’s own account on Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity securities to be issued solely in connection with any equity securities issuable in connection with the Company’s stock option proposed sale or other employee benefit plans, pre-effective or post-effective amendments to the Company’s recently filed Form S-4 related to the Gryphon Transaction, and post-effective amendments to existing registration statements to keep them current in accordance with existing registration requirements on the date hereof, the Company shall not file any other registration statement without Purchaser’s advance written consent until after the Effectiveness Datedisposition.
Appears in 1 contract
Registration Obligations. (a) As promptly as practicable following the Closing Date, the Company shall prepare and file with the SEC a Registration Statement covering the resale of the Registrable Securities as would permit the sale and distribution of all the Registrable Securities from time to time pursuant to Rule 415 in the manner reasonably requested by the Purchaser. The Registration Statement shall be on Form S-1 (or such other form available to the Company for the registration of the Registrable Securities at the time of filing as determined in good faith by counsel of the Company). The Registration Statement shall contain the “Plan of Distribution” section in substantially the form attached hereto as Annex A, subject to any SEC comments; provided, however, that the no Purchaser shall not be named as an “underwriter” in the Registration Statement without the such Purchaser’s prior written consent. Such Registration Statement also shall cover, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), such indeterminate number of additional shares of Company Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities. Such Registration Statement shall not include any shares of Company Common Stock or other securities for the account of any other holder without the prior written consent of the Purchaser. The Company shall use commercially reasonable best efforts to cause the Registration Statement filed by it to be declared effective by the SEC under the Securities Act as promptly as practicable after the filing thereof but in any event on or prior to the Effectiveness Deadlinethereof, and, subject to Section 3.1(m) hereof, to keep such Registration Statement continuously effective under the Securities Act until such date as all Registrable Securities covered by such Registration Statement have ceased to be Registrable Securities (the “Effectiveness Period”). By 5:30 p.m., Eastern time, on the Effective Date, the Company shall file with the SEC in accordance with Rule 424(b)(3) under the Securities Act the final Prospectus to be used in connection with sales pursuant to such Registration Statement.
(b) Promptly following the date (the “Qualification Date”) upon which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale, but in no event more than thirty (30) days after the Qualification Date (the “Qualification Deadline”), the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post- effective amendment on Form S-3 to the registration statement on Form S-1) (a “Shelf Registration Statement”) and shall use commercially reasonable efforts to cause such Shelf Registration Statement to be declared effective as promptly as practicable thereafter, provided that the Company shall maintain the effectiveness of all Shelf Registration Statements then in effect and the availability for use of each Prospectus contained therein until such time as a Shelf Registration Statement covering the resale of all the Registrable Securities has been declared effective by the SEC and the Prospectus contained therein is available for use or, if sooner, the expiration of the Effectiveness Period.
(c) If (i) a Registration Statement covering the resale of all of the Registrable Securities required to be covered thereby and required to be filed by the Company pursuant to this Agreement is not declared effective by the SEC on or before the Effectiveness Deadline (an “Effectiveness Failure”), (ii) on any day after the Effective Date of a Registration Statement sales of all of the Registrable Securities required to be included on such Registration Statement cannot be made pursuant to such Registration Statement (including, without limitation, because of a failure to keep such Registration Statement effective, a failure to disclose such information as is necessary for sales to be made pursuant to such Registration Statement, a failure to have the shares of Common Stock listed or quoted for trading on Nasdaq (as defined below), any other national securities exchange or any market of the OTC Markets for three (3) consecutive trading days, or a failure to register a sufficient number of shares of Common Stock or by reason of a stop order) or the prospectus contained therein is not properly available for use for any reason (other than because of an Allowed Delay) (collectively, a “Maintenance Failure”), or (iii) a Registration Statement is not effective for any reason, the prospectus contained therein is not properly available for use for any reason, or the Company fails to file with the SEC any required reports under Section 13 or 15(d) of the Exchange Act such that it is not in compliance with Rule 144(c)(1) (or Rule 144(i)(2), if applicable) (other than because of an Allowed Delay) (a “Current Public Information Failure”) as a result of which the Purchaser is unable to sell Registrable Securities without restriction under Rule 144 (including, without limitation, volume restrictions), then, as liquidated relief for the damages to any holder by reason of any such delay in, or reduction of, its ability to sell the underlying shares of Common Stock (which remedy, other than the right o require specific performance, shall be exclusive of all other remedies available at law or in equity), the Company shall pay to each holder of Registrable Securities relating to such Registration Statement an amount in cash equal to one percent (1.0%) of the Share Purchase Price (as defined in the Purchase Agreement): (1) within three (3) days after the date of such Effectiveness Failure, Maintenance Failure or Current Public Information Failure, as applicable; and (2) on every thirty (30) day anniversary of (I) an Effectiveness Failure until such Effectiveness Failure is cured; (II) a Maintenance Failure until such Maintenance Failure is cured; and (III) a Current Public Information Failure until the earlier of (i) the date such Current Public Information Failure is cured and (ii) such time that such public information is no longer required pursuant to Rule 144, in each case of 2(I), (II) and (III), pro-rated for periods totaling less than thirty (30) days. The payments to which a holder of Registrable Securities shall be entitled pursuant to this Section 2(c) are referred to herein as “Registration Delay Payments.” Following the initial Registration Delay Payment for any particular event or failure (which shall be paid on the date of such event or failure, as set forth above), without limiting the foregoing, once an event or failure giving rise to the Registration Delay Payments is cured and all Registration Delay Payments relating thereto have been paid, then no further Registration Delay Payment(s) shall be due after such cure for that particular failure. In the event the Company fails to make Registration Delay Payments in a timely manner in accordance with the foregoing, such Registration Delay Payments shall bear interest at the rate of one percent (1%) per month (prorated for partial months) until paid in full. Notwithstanding the foregoing, no Registration Delay Payments shall be owed to Purchaser: (i) with respect to an Effectiveness Failure, a Maintenance Failure or a Current Public Information Failure, for any period after the earlier of (x) the date on which Purchaser may conduct a resale of all of its Registrable Securities in reliance on a valid exemption from registration in accordance with Rule 144 or (y) the date on which Purchaser sold, transferred or otherwise disposed of all of its Registrable Securities, (ii) with respect to any Registrable Securities excluded from a Registration Statement by election of the Purchaser and (iii) in respect of any Allowed Delay.
(d) Other than registration statements relating to an offering for the Company’s own account on Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity securities to be issued solely in connection with any equity securities issuable in connection with the Company’s stock option or other employee benefit plans, pre-effective or post-effective amendments to the Company’s recently filed Form S-4 related to the Gryphon Transaction, and post-effective amendments to existing registration statements to keep them current in accordance with existing registration requirements on the date hereof, the Company shall not file any other registration statement without Purchaser’s advance written consent until after the Effectiveness Date.
Appears in 1 contract
Registration Obligations. The Company covenants and agrees:
(a) As promptly If, at any time after the Common Stock is listed on the NASDAQ small cap market or any other U.S. Exchange other than the NASDAQ Bulletin Board Holder requests that the Company file a registration statement under the Securities Act of 1933 (the “Securities Act”), as soon as practicable following the Closing Date, thereafter the Company shall prepare and use its best efforts to file a registration statement with the SEC a Registration Statement covering the resale respect to any or all Warrants, or any or all of the Registrable Securities as would Common Stock issuable upon exercise of the Warrants (the “Warrant Shares”), (whether for primary offering and sale by the Company to the Holder, or for a subsequent secondary offering and sale by the Holder), that the Company has been so requested to include and obtain the effectiveness thereof, and to take all other action necessary under any Federal or state law or regulation to permit the sale and distribution of all Warrants or the Registrable Securities from time to time pursuant to Rule 415 Warrant Shares specified in the manner reasonably requested by notice of the Purchaser. The Registration Statement shall Holder to be on Form S-1 (sold or such other form available to otherwise disposed of, and the Company shall maintain such compliance with each such Federal and state law and regulation for the registration of period necessary for Holder to effect the Registrable Securities at the time of filing as determined in good faith by counsel of the Company). The Registration Statement shall contain the “Plan of Distribution” section in substantially the form attached hereto as Annex A, subject to any SEC commentsproposed sale or other disposition; provided, however, that the Purchaser Company shall not be named as an “underwriter” in the Registration Statement without the Purchaser’s prior written consent. Such Registration Statement also shall cover, entitled to defer such registration for a period of up to 60 days if and to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416)that its Board of Directors shall determine that such registration would interfere with a pending corporate transaction. The Holder shall be entitled to register, such indeterminate number of additional shares of Company Common Stock resulting from stock splitsreregister or qualify, stock dividends all or similar transactions with respect to the Registrable Securities. Such Registration Statement shall not include any shares of Company Common Stock or other securities for the account of any other holder without the prior written consent portion of the Purchaser. The Company shall use reasonable best efforts to cause the Registration Statement filed by it to be declared effective by the SEC under the Securities Act as promptly as practicable after the filing thereof but in any event on or prior to the Effectiveness DeadlineWarrant Shares, and, subject to Section 3.1(m) hereof, to keep such Registration Statement continuously effective under the Securities Act until such date as all Registrable Securities covered by such Registration Statement have ceased to be Registrable Securities (the “Effectiveness Period”). By 5:30 p.m., Eastern time, on the Effective Date, and the Company shall file with be required to effect a registration, re-registration or qualification as requested by the SEC in accordance with Rule 424(b)(3) under the Securities Act the final Prospectus to be used in connection with sales Holder pursuant to such Registration Statementthis subsection 3.1(a) on four occasions.
(b) Promptly following If at any time or from time to time prior to the date (the “Qualification Expiration Date”) upon which , the Company becomes eligible proposes to use register any of its securities under the Securities Act on any form for the registration of securities under such Act, whether or not for its own account (other than by a registration statement on Form S-3 S-S or Form S-4 or other form which does not included substantially the same information as would be required in a form for the general registration of securities or would not be available for the Common Stock) (a “Piggyback Registration”), it shall as expeditiously as possible give written notice to register the Registrable Securities for resale, but in no event more than thirty (30) Holders of this intention to do so and of such Holder’s rights under this Section 3.1(c). Such rights are referred to hereinafter as “Piggyback Registration Rights.” Upon the written request of the Holder made within 20 days after receipt of any such notice (which request shall specify the Qualification Date (the “Qualification Deadline”registrable securities intended to be disposed of by such Holder), the Company shall file a registration statement on Form S-3 covering include in the Registrable Securities (or a post- effective amendment on Form S-3 to the registration statement on Form S-1) (a “Shelf Registration Statement”) and shall use commercially reasonable efforts to cause such Shelf Registration Statement the registrable securities which the Company has been so requested to be declared effective as promptly as practicable thereafter, provided that register by the Holder thereof and the Company shall maintain the effectiveness of all Shelf Registration Statements then keep such registration statement in effect and maintain compliance with each Federal and state law or regulation for the availability period necessary for use of such Holder to effect the proposed sale or other disposition. If a Piggyback Registration involves an offering by or through underwriters, the Company, except as otherwise provided herein, shall not be required to include registrable shares therein if and to the extent the underwriter managing the offering reasonably believes in good faith and advises in writing each Prospectus contained therein until such time as a Shelf Holder requesting to have registrable securities included in the Company’s Registration Statement covering that marketing factors require a limitation on the resale number of shares to be underwritten; provided that any such reduction or elimination shall be pro rata to all the Registrable Securities has been declared effective by the SEC and the Prospectus contained therein is available for use or, if sooner, the expiration other holders of the Effectiveness Periodsecurities of the Company exercising “Piggyback Registration Rights” similar to those set forth herein in proportion to the respective number of shares they have requested to be registered.
(c) If (i) a Registration Statement covering the resale of all of the Registrable Securities required to be covered thereby and required to be filed by the Company pursuant to this Agreement is not declared effective by the SEC on or before the Effectiveness Deadline (an “Effectiveness Failure”), (ii) on any day after the Effective Date of a Registration Statement sales of all of the Registrable Securities required to be included on such Registration Statement cannot be made pursuant to such Registration Statement (including, without limitation, because of a failure to keep such Registration Statement effective, a failure to disclose such information as is necessary for sales to be made pursuant to such Registration Statement, a failure to have the shares of Common Stock listed or quoted for trading on Nasdaq (as defined below), any other national securities exchange or any market of the OTC Markets for three (3) consecutive trading days, or a failure to register a sufficient number of shares of Common Stock or by reason of a stop order) or the prospectus contained therein is not properly available for use for any reason (other than because of an Allowed Delay) (collectively, a “Maintenance Failure”), or (iii) a Registration Statement is not effective for any reason, the prospectus contained therein is not properly available for use for any reason, or the Company fails to file with the SEC any required reports under Section 13 or 15(d) of the Exchange Act such that it is not in compliance with Rule 144(c)(1) (or Rule 144(i)(2), if applicable) (other than because of an Allowed Delay) (a “Current Public Information Failure”) as a result of which the Purchaser is unable to sell Registrable Securities without restriction under Rule 144 (including, without limitation, volume restrictions), then, as liquidated relief for the damages to any holder by reason of any such delay in, or reduction of, its ability to sell the underlying shares of Common Stock (which remedy, other than the right o require specific performance, shall be exclusive of all other remedies available at law or in equity), the The Company shall pay to each holder of Registrable Securities relating to such all Registration Statement an amount Expenses in cash equal to one percent connection with the registrations provided for the Section 3.1 (1.0%) of the Share Purchase Price (as defined in the Purchase Agreement): (1) within three (3) days after the date of such Effectiveness Failure, Maintenance Failure or Current Public Information Failure, as applicable; and (2) on every thirty (30) day anniversary of (I) an Effectiveness Failure until such Effectiveness Failure is cured; (II) a Maintenance Failure until such Maintenance Failure is cured; and (III) a Current Public Information Failure until the earlier of (i) the date such Current Public Information Failure is cured and (ii) such time that such public information is no longer required pursuant to Rule 144, in each case of 2(I), (IIa) and (IIIb), pro-rated for periods totaling less than thirty (30) days. The payments to which a holder of Registrable Securities shall be entitled pursuant to this Section 2(c) are referred to herein as “Registration Delay Payments.” Following the initial Registration Delay Payment for any particular event or failure (which shall be paid on the date of such event or failure, as set forth above), without limiting the foregoing, once an event or failure giving rise to the Registration Delay Payments is cured and all Registration Delay Payments relating thereto have been paid, then no further Registration Delay Payment(s) shall be due after such cure for that particular failure. In the event the Company fails to make Registration Delay Payments in a timely manner in accordance with the foregoing, such Registration Delay Payments shall bear interest at the rate of one percent (1%) per month (prorated for partial months) until paid in full. Notwithstanding the foregoing, no Registration Delay Payments shall be owed to Purchaser: (i) with respect to an Effectiveness Failure, a Maintenance Failure or a Current Public Information Failure, for any period after the earlier of (x) the date on which Purchaser may conduct a resale of all of its Registrable Securities in reliance on a valid exemption from registration in accordance with Rule 144 or (y) the date on which Purchaser sold, transferred or otherwise disposed of all of its Registrable Securities, (ii) with respect to any Registrable Securities excluded from a Registration Statement by election of the Purchaser and (iii) in respect of any Allowed Delay.
(d) Other than registration statements relating to an offering for To update the Company’s own account on Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity securities to be issued solely in connection with Holder regarding any equity securities issuable in connection with the Company’s stock option or other employee benefit plans, pre-effective or post-effective amendments to the Company’s recently filed Form S-4 material developments related to the Gryphon Transactionregistrations referred to above, including any stop orders issued by the Securities and post-effective amendments to existing registration statements to keep them current in accordance with existing registration requirements on the date hereof, the Company shall not file Exchange Commission or any other circumstances that make such registration statement without Purchaser’s advance written consent until after the Effectiveness Dateunavailable for any reason.
Appears in 1 contract
Samples: Warrant Agreement (Proginet Corp)
Registration Obligations. (ai) As promptly as practicable following the Closing DateThe BVI Affiliate agrees that, on or before October 15, 2022, the Company shall prepare and BVI Affiliate will file with the SEC U.S. Securities and Exchange Commission (the “Commission”) (at the BVI Affiliate’s sole cost and expense) a registration statement (the “Registration Statement covering Statement”) registering the resale of the Registrable Securities as would permit BVI Shares issuable under the sale Upfront Warrants (the “Initial Warrant Shares”), and distribution of all to use commercially reasonable efforts have the Registrable Securities from time to time pursuant to Rule 415 in the manner reasonably requested by the Purchaser. The Registration Statement shall be on Form S-1 declared effective as soon as practicable after the filing thereof (or such other form available to the Company for the registration of the Registrable Securities at the time of filing as determined in good faith by counsel of the Company). The Registration Statement shall contain date, the “Plan of Distribution” section in substantially the form attached hereto as Annex A, subject to any SEC commentsEffective Date”); provided, however, that the Purchaser shall not be named as an “underwriter” BVI Affiliate’s obligations to include a Seller’s Initial Warrant Shares in the Registration Statement without are contingent upon such Seller furnishing in writing to the Purchaser’s prior written consent. Such BVI Affiliate such information regarding such Seller, the securities of the BVI Affiliate held by such Seller and the intended method of disposition of such Initial Warrant Shares as shall be reasonably requested by the BVI Affiliate to effect the registration of the Initial Warrant Shares, and such Seller shall execute such documents in connection with such registration as the BVI Affiliate may reasonably request that are customary of a selling stockholder in similar situations, including providing that the BVI Affiliate shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement also during any customary blackout or similar period or as permitted hereunder. The BVI Affiliate shall cover, provide a draft of the Registration Statement to the extent allowable Seller Representative at least two (2) Business Days in advance of its anticipated initial filing date; provided that the Seller Representative agrees to keep confidential the receipt of such Registration Statement and the information contained therein until filed with the Commission. It is further agreed that the “Plan of Distribution” shall be reasonably satisfactory to the Seller Representative prior to any filing of the Registration Statement. Notwithstanding the foregoing, if the Commission prevents the BVI Affiliate from including any or all of the Initial Warrant Shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act and for the rules promulgated thereunder (including Rule 416)resale of the Initial Warrant Shares by the applicable Seller(s) or otherwise, such indeterminate number of additional shares of Company Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities. Such Registration Statement shall not include any shares register for resale such number of Company Common Stock or other securities Acquired Shares which is equal to the maximum number of Acquired Shares as is permitted by the Commission. In such event, the number of Acquired Shares to be registered for the account of any other holder without the prior written consent of the Purchaser. The Company shall use reasonable best efforts to cause each Seller named in the Registration Statement filed by it to shall be declared effective reduced pro rata among all such Sellers. Upon notification by the SEC under Commission that the Securities Act as promptly as practicable after the filing thereof but in any event on or prior to the Effectiveness Deadline, and, subject to Section 3.1(m) hereof, to keep such Registration Statement continuously effective under the Securities Act until such date as all Registrable Securities covered by such Registration Statement have ceased to be Registrable Securities (the “Effectiveness Period”). By 5:30 p.m., Eastern time, on the Effective Date, the Company shall file with the SEC in accordance with Rule 424(b)(3) under the Securities Act the final Prospectus to be used in connection with sales pursuant to such Registration Statement.
(b) Promptly following the date (the “Qualification Date”) upon which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale, but in no event more than thirty (30) days after the Qualification Date (the “Qualification Deadline”), the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post- effective amendment on Form S-3 to the registration statement on Form S-1) (a “Shelf Registration Statement”) and shall use commercially reasonable efforts to cause such Shelf Registration Statement to be declared effective as promptly as practicable thereafter, provided that the Company shall maintain the effectiveness of all Shelf Registration Statements then in effect and the availability for use of each Prospectus contained therein until such time as a Shelf Registration Statement covering the resale of all the Registrable Securities has been declared effective by the SEC and the Prospectus contained therein is available for use orCommission, if soonerwithin two (2) Business Days thereafter, the expiration BVI Affiliate shall file the final prospectus under Rule 424 of the Effectiveness PeriodSecurities Act.
(cii) If (i) BVI Affiliate shall not suspend the use of the prospectus forming part of a BVI Registration Statement covering unless it suspends the use of the prospectus filed with the SEC prior to the BVI Registration Statement and related to the resale of all Class A Ordinary Shares of the Registrable BVI Affiliate which are held by investors in the BVI Affiliate’s PIPE financing and certain BVI Affiliate insiders (ie: executives, founders, etc.) (or any replacement prospectus).
(iii) BVI Affiliate shall, at its expense: • except for such times as the BVI Affiliate is permitted hereunder to suspend the use of the prospectus forming part of a BVI Registration Statement, use its commercially reasonable efforts to keep such registration, and any qualification, exemption or compliance under applicable securities laws which the BVI Affiliate determines to obtain, continuously effective with respect to the Sellers, and to keep the applicable BVI Registration Statement or any subsequent shelf registration statement free of any material misstatements or omissions, until the earliest of the following: the date all BVI Shares issuable upon exercise of the Warrants held by all Sellers may be sold by the Sellers without restriction under Rule 144, including without limitation, any volume and manner of sale restrictions which may be applicable to affiliates under Rule 144 promulgated under the Securities required Act and without the requirement for the BVI Affiliate to be covered thereby in compliance with the current public information required under Rule 144(c)(1) or Rule 144(i)(2) and required to be filed by the Company pursuant to this Agreement is not declared effective by the SEC on or before the Effectiveness Deadline thirty-six (an “Effectiveness Failure”), (ii36) on any day after months from the Effective Date of a the applicable Registration Statement). • advise the Seller Representative within two (2) Business Days: (1) of the issuance by the Commission of any stop order suspending the effectiveness of the applicable BVI Registration Statement sales or the initiation of all any proceedings for such purpose; (2) of the Registrable Securities required receipt by the BVI Affiliate of any notification with respect to the suspension of the qualification of the Initial Warrant Shares or Subsequent Warrant Shares, as applicable, included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and (3) of the occurrence of any event that requires the making of any changes in the applicable BVI Registration Statement or prospectus so that, as of such date, such BVI Registration Statement or prospectus does not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading. Notwithstanding anything to the contrary set forth herein, the BVI Affiliate shall not, when so advising the Seller Representative of such events, provide the Seller Representative with any material, nonpublic information regarding the BVI Affiliate other than to the extent that providing notice to the Seller Representative of the occurrence of the events listed in (1) through (3) in the paragraph immediately above constitutes material, nonpublic information regarding the BVI Affiliate; • use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of the applicable the BVI Registration Statement as soon as reasonably practicable; • use its commercially reasonable efforts to cause all Initial Warrant Shares and Subsequent Warrant Shares, as applicable, to be included listed on such Registration Statement cannot be made pursuant to such Registration Statement (including, without limitation, because of a failure to keep such Registration Statement effective, a failure to disclose such information as is necessary for sales to be made pursuant to such Registration Statement, a failure to have the shares of Common Stock listed or quoted for trading on Nasdaq (as defined below), any other national each securities exchange or any market market, if any, on which the BVI Shares issued by the BVI Affiliate have been listed; • if requested by the Seller Representative, remove the restrictive legend described in in Clause 3.5.2 (or instruct its transfer agent to so remove such legend) from the Initial Warrant Shares and Subsequent Warrant Shares, as applicable, if (1) the applicable BVI Registration Statement is and continues to be effective under the Securities Act, (2) such Initial Warrant Shares or Subsequent Warrant Shares, as applicable, are sold or transferred pursuant to Rule 144 (if the transferor is not an affiliate of the OTC Markets for three (3) consecutive trading days, or a failure BVI Affiliate and subject to register a sufficient number all applicable requirements of shares of Common Stock or by reason of a stop order) or the prospectus contained therein is not properly available for use for any reason (other than because of an Allowed Delay) (collectively, a “Maintenance Failure”Rule 144 being met), or (iii3) a Registration Statement is not effective such Initial Warrant Shares or Subsequent Warrant Shares, as applicable, are eligible for any reasonsale under Rule 144, without the prospectus contained therein is not properly available requirement for use for any reason, or the Company fails BVI Affiliate to file with the SEC any required reports under Section 13 or 15(d) of the Exchange Act such that it is not be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable) (other than because of an Allowed Delay) (a “Current Public Information Failure”) as a result of which the Purchaser is unable to sell Registrable Securities without restriction under Rule 144 (including, without limitation, volume restrictions), then, as liquidated relief for the damages to any holder by reason of any such delay in, or reduction of, its ability to sell the underlying shares of Common Stock (which remedy, other than the right o require specific performance, shall be exclusive of all other remedies available at law or in equity), the Company shall pay to each holder of Registrable Securities relating to such Registration Statement an amount in cash equal to one percent (1.0%) of the Share Purchase Price (as defined in the Purchase Agreement): (1) within three (3) days after the date of such Effectiveness Failure, Maintenance Failure Initial Warrant Shares or Current Public Information FailureSubsequent Warrant Shares, as applicable, and without volume or manner-of-sale restrictions; provided that the applicable Seller(s) shall have timely provided customary representations and other documentation reasonably acceptable to the BVI Affiliate, its counsel and/or its transfer agent, including, if necessary, a supporting legal opinion of counsel to the sellers (2at the applicable Seller’s expense), in connection therewith (the “Representations”). Any fees (with respect to the transfer agent, BVI Affiliate’s counsel or otherwise) on every thirty (30) day anniversary associated with the issuance of (I) an Effectiveness Failure until any legal opinion required by the BVI Affiliate’s transfer agent or the removal of such Effectiveness Failure is cured; (II) legend shall be borne by the BVI Affiliate. If a Maintenance Failure until such Maintenance Failure is cured; and (III) a Current Public Information Failure until the earlier of (i) the date such Current Public Information Failure is cured and (ii) such time that such public information legend is no longer required pursuant to Rule 144the foregoing, the BVI Affiliate will use commercially reasonable efforts to cause its transfer agent to, as promptly as practicable following the delivery by the applicable Seller to the BVI Affiliate or the transfer agent (with notice to the BVI Affiliate) of the Representations, remove the restrictive legend related to the book entry account holding the Initial Warrant Shares or Subsequent Warrant Shares, as applicable, and make a new, unlegended book entry for such Initial Warrant Shares or Subsequent Warrant Shares, as applicable.
(iv) The BVI Affiliate agrees that, in each case of 2(Ithe event that an Earn Out Warrant becomes issuable hereunder in accordance with Clause 3.3 (the BVI Shares issuable under any Earn Out Warrant, the “Subsequent Warrant Shares”), the BVI Affiliate will promptly, but no later than the earlier of (IIA) 60 days thereafter and (IIIB) the date on which BVI Affiliate is otherwise registering the resale of its shares on Form F01 or Form F-3 by one or more third parties, file with the Commission (at the BVI Affiliate’s sole cost and expense) a registration statement (each, a “Subsequent Registration Statement” and together with the Registration Statement, a “BVI Registration Statement”) registering the resale of such applicable Subsequent Warrant Shares, and use commercially reasonable efforts to have the Subsequent Registration Statement declared effective as soon as practicable after the filing thereof (such date, the applicable “Subsequent Effective Date”); provided, pro-rated for periods totaling less than thirty (30) days. The payments however, that the BVI Affiliate’s obligations to which include a holder Seller’s Subsequent Warrant Shares in the Subsequent Registration Statement are contingent upon such Seller furnishing in writing to the BVI Affiliate such information regarding such Seller, the securities of Registrable Securities the BVI Affiliate held by such Seller and the intended method of disposition of such Subsequent Warrant Shares as shall be reasonably requested by the BVI Affiliate to effect the registration of the Subsequent Warrant Shares, and such Seller shall execute such documents in connection with such registration as the BVI Affiliate may reasonably request that are customary of a selling stockholder in similar situations, including providing that the BVI Affiliate shall be entitled pursuant to this Section 2(cpostpone and suspend the effectiveness or use of the Subsequent Registration Statement during any customary blackout or similar period or as permitted hereunder. The BVI Affiliate shall provide a draft of the Subsequent Registration Statement to the Seller Representative at least two (2) are referred Business Days in advance of its anticipated initial filing date; provided that the Seller Representative agrees to herein as keep confidential the receipt of such Subsequent Registration Statement and the information contained therein until filed with the Commission. It is further agreed that the “Registration Delay Payments.Plan of Distribution” Following the initial Registration Delay Payment for any particular event or failure (which shall be paid on the date of such event or failure, as set forth above), without limiting the foregoing, once an event or failure giving rise reasonably satisfactory to the Seller Representative prior to any filing of the Registration Delay Payments is cured and all Registration Delay Payments relating thereto have been paid, then no further Registration Delay Payment(s) shall be due after such cure for that particular failure. In the event the Company fails to make Registration Delay Payments in a timely manner in accordance with the foregoing, such Registration Delay Payments shall bear interest at the rate of one percent (1%) per month (prorated for partial months) until paid in fullStatement. Notwithstanding the foregoing, no if the Commission prevents the BVI Affiliate from including any or all of the Subsequent Warrant Shares proposed to be registered under the Subsequent Registration Delay Payments Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Subsequent Warrant Shares by the applicable Seller(s) or otherwise, such Subsequent Registration Statement shall register for resale such number of Subsequent Warrant Shares which is equal to the maximum number of Subsequent Warrant Shares as is permitted by the Commission. In such event, the number of Subsequent Warrant Shares to be registered for each Seller named in the Subsequent Registration Statement shall be owed to Purchaser: (i) with respect to an Effectiveness Failure, a Maintenance Failure or a Current Public Information Failure, for any period after reduced pro rata among all such Sellers. Upon notification by the earlier of (x) Commission that the date on which Purchaser may conduct a resale of all of its Registrable Securities in reliance on a valid exemption from registration in accordance with Rule 144 or (y) the date on which Purchaser sold, transferred or otherwise disposed of all of its Registrable Securities, (ii) with respect to any Registrable Securities excluded from a Subsequent Registration Statement has been declared effective by election the Commission, within two (2) Business Days thereafter, the BVI Affiliate shall file the final prospectus under Rule 424 of the Purchaser and (iii) in respect of any Allowed DelaySecurities Act.
(dv) Other than registration statements relating Notwithstanding the foregoing Clause 3.2.2(iv), the BVI Affiliate shall not be required to an offering comply with Clause 3.2.2(iv) if all Subsequent Warrant Shares are otherwise registered for immediate public resale and without any restrictive legends at the Company’s own account on Form S-4 or Form S-8 (each as promulgated time such Subsequent Warrant Shares become exercisable and available for purchase by the applicable Seller under the Securities Act) or their then equivalents relating to equity securities to be issued solely in connection with any equity securities issuable in connection with the Company’s stock option or other employee benefit plans, pre-effective or post-effective amendments to the Company’s recently filed Form S-4 related to the Gryphon Transaction, and post-effective amendments to existing registration statements to keep them current in accordance with existing registration requirements on the date hereof, the Company shall not file any other registration statement without Purchaser’s advance written consent until after the Effectiveness Dateapplicable Warrant.
Appears in 1 contract
Registration Obligations. (a) As promptly as practicable following Whenever the Closing DateCompany is required to effect the registration of Registrable Securities under the Securities Act pursuant to this Article IV, the Company shall use its best efforts to effect the registration of the applicable Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto, and the Company shall have the following obligations:
(a) Promptly prepare and file with the SEC a Registration Statement covering with respect to all the resale Registrable Securities required to be covered by such Registration Statement (but in no event later than the applicable Filing Deadline) and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable after such filing (but in no event later than the Effectiveness Deadline). Subject only to Allowable Suspension Periods with respect to a Shelf Registration Statement, the Company shall use it reasonable best efforts to keep each Registration Statement effective (and the prospectus contained therein available for use) (and if such offering is under a Shelf Registration Statement, such effectiveness shall be pursuant to Rule 415 for resales by the Holders) at all times until, as applicable, (i) if such Registration Statement is not a Shelf Registration Statement, one (1) year after the Effective Date of such Registration Statement or (ii) if such Registration Statement is a Shelf Registration Statement, the date on which the Holders shall have sold all of the Registrable Securities as covered by such Shelf Registration Statement (the “Registration Period”). Subject only to Allowable Suspension Periods with respect to a Shelf Registration Statement, the Company shall not be deemed to have used its reasonable best efforts to keep a Registration Statement effective during the Registration Period for such Registration Statement if the Company voluntarily takes any action or omits to take any action that would permit the sale result in any Holder not being able to offer and distribution sell any of all the such Holder’s Registrable Securities from time included in such Shelf Registration Statement during the Registration Period for such Shelf Registration Statement. Notwithstanding anything to time the contrary contained in this Agreement, the Company shall ensure that, when filed and at all times while effective, each Registration Statement (including, without limitation, all amendments and supplements thereto) and the prospectus (including, without limitation, all amendments and supplements thereto) used in connection with such Registration Statement (1) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein (in the case of prospectuses, in the light of the circumstances in which they were made) not misleading and (2) will disclose (whether directly or through incorporation by reference to other SEC filings to the extent permitted) all material information regarding the Company and its securities.
(b) Promptly prepare and file with the SEC such amendments (including, without limitation, post-effective amendments) and supplements to each Registration Statement and the prospectus used in connection with each such Registration Statement, which prospectus is to be filed pursuant to Rule 415 424 promulgated under the Securities Act, as may be necessary to keep each such Registration Statement effective at all times during the Registration Period for such Registration Statement, and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company required to be covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the manner reasonably requested intended methods of disposition by the Purchaser. The seller or sellers thereof as set forth in such Registration Statement shall be on Form S-1 (or such other form available to the Company for the registration of the Registrable Securities at the time of filing as determined in good faith by counsel of the Company). The Registration Statement shall contain the “Plan of Distribution” section in substantially the form attached hereto as Annex A, subject to any SEC commentsStatement; provided, however, that the Purchaser shall not be named as an “underwriter” in the Registration Statement without the Purchaser’s prior written consent. Such Registration Statement also shall cover, to the extent allowable under the Securities Act and the rules promulgated thereunder by 8:30 a.m. (including Rule 416), such indeterminate number of additional shares of Company Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities. Such Registration Statement shall not include any shares of Company Common Stock or other securities for the account of any other holder without the prior written consent of the Purchaser. The Company shall use reasonable best efforts to cause the Registration Statement filed by it to be declared effective by the SEC under the Securities Act as promptly as practicable after the filing thereof but in any event on or prior to the Effectiveness Deadline, and, subject to Section 3.1(mNew York time) hereof, to keep such Registration Statement continuously effective under the Securities Act until such date as all Registrable Securities covered by such Registration Statement have ceased to be Registrable Securities (the “Effectiveness Period”). By 5:30 p.m., Eastern time, on the Business Day immediately following each Effective Date, the Company shall file with the SEC in accordance with Rule 424(b)(3424(b) under the Securities Act the final Prospectus prospectus to be used in connection with sales pursuant to the applicable Registration Statement (whether or not such Registration Statementa prospectus is technically required by such rule).
(bc) Promptly following notify the date Holders holding Registrable Securities when the applicable Registration Statement or any amendment thereto has been filed or becomes effective, and when the applicable prospectus or any amendment or supplement to such prospectus has been filed, but, in each case, in no event later than one (1) Business Day thereafter.
(d) Promptly notify the “Qualification Date”Holders holding Registrable Securities of, and provide copies of, (i) upon which any written comments by the SEC or any request by the SEC or any other federal or state governmental authority for amendments or supplements to such Registration Statement or such prospectus or for additional information, (ii) any stop order suspending the effectiveness of such Registration Statement or any order by the SEC or any other regulatory authority preventing or suspending the use of any preliminary or final prospectus or the initiation or threatening of any proceedings for such purposes, and (iii) the receipt by the Company becomes eligible of any notification with respect to use a registration statement on Form S-3 to register the suspension of the qualification of the Registrable Securities for resale, but offering or sale in no event more than thirty any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(30e) days after Promptly notify the Qualification Date (the “Qualification Deadline”), Holders holding Registrable Securities when the Company becomes aware of the happening of any event as a result of which the applicable Registration Statement or the prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein (in the case of such prospectus and any preliminary prospectus, in light of the circumstances under which they were made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement such Registration Statement or prospectus in order to comply with the Securities Act and, in either case as promptly as reasonably practicable thereafter, prepare and file a registration statement on Form S-3 covering with the SEC an amendment or supplement to such Registration Statement and prospectus which shall correct such misstatement or omission or effect such compliance.
(i) Use its reasonable best efforts to prevent the issuance of any stop order or other suspension of effectiveness of each Registration Statement or the use of any prospectus contained therein, or the suspension of the qualification, or the loss of an exemption from qualification, of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and (ii) promptly notify each Holder holding Registrable Securities included therein of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
(g) Promptly incorporate in a post- prospectus supplement or post-effective amendment on Form S-3 such information as the sole or lead managing Underwriter, if any, or any of the Holders of Registrable Securities included in such Underwritten Offering determine should be included therein relating to the registration statement on Form S-1plan of distribution with respect to the applicable Registrable Securities.
(h) Promptly deliver to the Holders holding Registrable Securities and each Underwriter, if any, without charge, as many copies of the applicable prospectus (a “Shelf Registration Statement”including each preliminary prospectus) and shall any amendment or supplement thereto as a Holder holding Registrable Securities or Underwriter may reasonably request (it being understood that the Company consents to the use commercially of such prospectus or any amendment or supplement thereto by such Holders and the Underwriter, if any, in connection with the offering and sale of the Registrable Securities covered by such prospectus or any amendment or supplement thereto) and such other documents as a Holder including Registrable Securities therein may reasonably request in order to facilitate the disposition of such Holder’s Registrable Securities.
(i) On or prior to the date on which the applicable Registration Statement is declared effective, use its reasonable best efforts to cause such Shelf Registration Statement Registrable Securities (i) to be declared effective registered, approved or qualified for offer and sale under the securities or “Blue Sky” laws of each state and other jurisdiction of the United States as promptly either a Holder including Registrable Securities therein or the sole or lead managing Underwriter may reasonably request and (ii) to be registered with or approved by such other governmental agencies or authorities as practicable thereaftermay be necessary to enable the seller or sellers thereof or the Underwriter(s), if any, to consummate the disposition of the Registrable Securities, and in each case to do any and all other acts or things reasonably necessary or advisable to keep such registration or qualification in effect for such period as may be reasonably required, provided that the Company shall maintain the effectiveness not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to taxation or general service of all Shelf Registration Statements process in any such jurisdiction where it is not then in effect and the availability for use of each Prospectus contained therein until such time as a Shelf Registration Statement covering the resale of all the Registrable Securities has been declared effective by the SEC and the Prospectus contained therein is available for use or, if sooner, the expiration of the Effectiveness Periodso subject.
(cj) If Enter into such customary agreements (including underwriting and indemnification agreements) and take all such other actions as a Holder holding Registrable Securities or the sole or lead managing Underwriter, if any, reasonably requests in order to expedite or facilitate the registration and disposition of the Registrable Securities.
(k) Obtain for delivery to the Holders holding Registrable Securities and to the Underwriter(s), if any, an opinion or opinions from counsel for the Company dated the Effective Date of the applicable Registration Statement or, in the event of an Underwritten Offering, the date of the closing under the underwriting agreement, in customary form, scope and substance, which opinions shall be reasonably satisfactory to the Holders including Registrable Securities therein or Underwriter(s), as the case may be.
(l) Upon the written request of a Holder holding Registrable Securities, the Company shall make available for inspection by (i) a Registration Statement covering the resale of all of the Registrable Securities required to be covered thereby and required to be filed by the Company pursuant to this Agreement is not declared effective by the SEC on or before the Effectiveness Deadline (an “Effectiveness Failure”)such Holder, (ii) on legal counsel for such Holder and (iii) one (1) firm of accountants or other agents retained by such Holder (collectively, the “Inspectors”), all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably deemed necessary by each Inspector, and cause the Company’s officers, directors and employees to supply all information which any Inspector may reasonably request; provided, however, each Inspector shall agree in writing to hold in strict confidence and not to make any disclosure (except to such Holder) or use of any Record or other information which the Board of Directors determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (1) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required under the Securities Act, (2) the release of such Records is ordered pursuant to a final, non-appealable subpoena or order from a court or government body of competent jurisdiction, or (3) the information in such Records has been made generally available to the public. Such Holder agrees that it shall, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction or through other means, to the extent legally permissible give prompt notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidential. Nothing herein shall be deemed to limit any Holder’s ability to sell Registrable Securities in a manner which is otherwise consistent with applicable laws and regulations.
(m) In the case of an Underwritten Offering, obtain for delivery to the Company and the sole or lead managing Underwriter, with copies to the Holders including Registrable Securities in such Underwritten Offering, a cold comfort letter from the Company’s independent certified public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters as the managing underwriter may reasonably request, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement.
(n) Use its reasonable best efforts to cause the Registrable Securities covered by a Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities.
(o) Make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with, and in the manner provided by, the provisions of Rule 158 under the Securities Act) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the applicable Effective Date of each Registration Statement.
(p) Notwithstanding anything to the contrary herein, at any time after the Effective Date of a particular Registration Statement, the Company may delay the disclosure of material, non-public information concerning the Company or any of its subsidiaries the disclosure of which at the time is not, in the good faith opinion of the Board of Directors, in the best interest of the Company and, in the opinion of counsel to the Company, otherwise required (a “Suspension Period”), provided that the Company shall promptly notify the Holders of Registrable Securities included in such Registration Statement sales in writing of the (i) existence of material, non-public information giving rise to a Suspension Period (provided that in each such notice the Company shall not disclose the content of such material, non-public information to any of such Holders) and the date on which such Suspension Period will begin and (ii) date on which such Suspension Period ends, provided further that no Suspension Period shall exceed fifteen (15) consecutive days and during any three hundred sixty five (365) day period all such Suspension Periods shall not exceed an aggregate of thirty (30) days, (each, an “Allowable Suspension Period”). For purposes of determining the length of a Suspension Period above, such Suspension Period shall begin on and include the date such Holders receive the notice referred to in clause (i) above and shall end on and include the later of the date such Holders receive the notice referred to in clause (ii) above and the date referred to in such notice. The provisions of Section 4.3(f) hereof shall not be applicable during the period of any Allowable Suspension Period. Upon expiration of each Suspension Period, the Company shall again be bound by Section 4.3(e) with respect to the information giving rise thereto unless such material, non-public information is no longer applicable.
(q) Take any and all other actions as may be reasonably requested by the Holders including Registrable Securities in the applicable Registration Statement and the sole or lead managing Underwriter, if any, to facility the sale of the Registrable Securities required to be included on such Registration Statement cannot be made pursuant to such Registration Statement (including, without limitation, because of a failure to keep such Registration Statement effective, a failure to disclose such information as is necessary for sales to be made pursuant to such Registration Statement, a failure to have the shares of Common Stock listed or quoted for trading on Nasdaq (as defined below), any other national securities exchange or any market of the OTC Markets for three (3) consecutive trading days, or a failure to register a sufficient number of shares of Common Stock or by reason of a stop order) or the prospectus contained therein is not properly available for use for any reason (other than because of an Allowed Delay) (collectively, a “Maintenance Failure”), or (iii) a Registration Statement is not effective for any reason, the prospectus contained therein is not properly available for use for any reason, or the Company fails to file with the SEC any required reports under Section 13 or 15(d) of the Exchange Act such that it is not in compliance with Rule 144(c)(1) (or Rule 144(i)(2), if applicable) (other than because of an Allowed Delay) (a “Current Public Information Failure”) as a result of which the Purchaser is unable to sell Registrable Securities without restriction under Rule 144 (including, without limitation, volume restrictions), then, as liquidated relief for the damages to any holder by reason of any such delay in, or reduction of, its ability to sell the underlying shares of Common Stock (which remedy, other than the right o require specific performance, shall be exclusive of all other remedies available at law or in equity), the Company shall pay to each holder of Registrable Securities relating to such Registration Statement an amount in cash equal to one percent (1.0%) of the Share Purchase Price (as defined in the Purchase Agreement): (1) within three (3) days after the date of such Effectiveness Failure, Maintenance Failure or Current Public Information Failure, as applicable; and (2) on every thirty (30) day anniversary of (I) an Effectiveness Failure until such Effectiveness Failure is cured; (II) a Maintenance Failure until such Maintenance Failure is cured; and (III) a Current Public Information Failure until the earlier of (i) the date such Current Public Information Failure is cured and (ii) such time that such public information is no longer required pursuant to Rule 144, in each case of 2(I), (II) and (III), pro-rated for periods totaling less than thirty (30) days. The payments to which a holder of Registrable Securities shall be entitled pursuant to this Section 2(c) are referred to herein as “Registration Delay Payments.” Following the initial Registration Delay Payment for any particular event or failure (which shall be paid on the date of such event or failure, as set forth above), without limiting the foregoing, once an event or failure giving rise to the Registration Delay Payments is cured and all Registration Delay Payments relating thereto have been paid, then no further Registration Delay Payment(s) shall be due after such cure for that particular failure. In the event the Company fails to make Registration Delay Payments in a timely manner in accordance with the foregoing, such Registration Delay Payments shall bear interest at the rate of one percent (1%) per month (prorated for partial months) until paid in full. Notwithstanding the foregoing, no Registration Delay Payments shall be owed to Purchaser: (i) with respect to an Effectiveness Failure, a Maintenance Failure or a Current Public Information Failure, for any period after the earlier of (x) the date on which Purchaser may conduct a resale of all of its Registrable Securities in reliance on a valid exemption from registration in accordance with Rule 144 or (y) the date on which Purchaser sold, transferred or otherwise disposed of all of its Registrable Securities, (ii) with respect to any Registrable Securities excluded from a Registration Statement by election of the Purchaser and (iii) in respect of any Allowed Delay.
(d) Other than registration statements relating to an offering for the Company’s own account on Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity securities to be issued solely in connection with any equity securities issuable in connection with the Company’s stock option or other employee benefit plans, pre-effective or post-effective amendments to the Company’s recently filed Form S-4 related to the Gryphon Transaction, and post-effective amendments to existing registration statements to keep them current in accordance with existing registration requirements on the date hereof, the Company shall not file any other registration statement without Purchaser’s advance written consent until after the Effectiveness Date.
Appears in 1 contract
Registration Obligations. If and whenever USHG is obligated by the provisions of this Section 2 to cause the registration of any Registrable Securities under the Securities Act, as expeditiously as reasonably possible USHG will, or will use its best efforts to, as the case may be, cause the Trust to:
(a1) As promptly as practicable following the Closing Date, the Company shall prepare Prepare and file with the SEC a Registration Statement covering registration statement with respect to such Registrable Securities.
(2) Prepare and file with the resale SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective until the earlier of the sale of all Registrable Securities covered thereby and the expiration of a period of nine months after the date such registration statement became effective (except that any registration statement on Form S-3 or similar short-form shall be maintained for not less than two years), and comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such registration statement.
(3) Furnish to each selling Holder such numbers of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents, as such Holder may reasonably request.
(4) Register or qualify the Registrable Securities as would permit the sale and distribution of all the Registrable Securities from time to time pursuant to Rule 415 in the manner reasonably requested covered by the Purchaser. The Registration Statement shall be on Form S-1 (or such registration statement under such other form available securities or blue sky laws of such jurisdictions (subject to the Company for approval of any managing underwriter involved) as the registration selling Holders shall request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such Holders to consummate the disposition in such jurisdictions of the such Registrable Securities at the time of filing as determined in good faith by counsel of the Company). The Registration Statement shall contain the “Plan of Distribution” section in substantially the form attached hereto as Annex A, subject to any SEC commentsSecurities; provided, however, that the Purchaser Trust shall not be named as an “underwriter” in the Registration Statement without the Purchaser’s prior written consent. Such Registration Statement also shall coverobligated, by reason thereof, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), such indeterminate number of additional shares of Company Common Stock resulting from stock splits, stock dividends qualify as a foreign corporation or similar transactions with respect subject itself to the Registrable Securities. Such Registration Statement shall not include any shares of Company Common Stock or other securities for the account of any other holder without the prior written consent of the Purchaser. The Company shall use reasonable best efforts to cause the Registration Statement filed by it to be declared effective by the SEC under the Securities Act taxation as promptly as practicable after the filing thereof but doing business in any event on or prior to the Effectiveness Deadline, and, subject to Section 3.1(m) hereof, to keep such Registration Statement continuously effective under the Securities Act until such date as all Registrable Securities covered by such Registration Statement have ceased to be Registrable Securities (the “Effectiveness Period”). By 5:30 p.m., Eastern time, on the Effective Date, the Company shall file with the SEC in accordance with Rule 424(b)(3) under the Securities Act the final Prospectus to be used in connection with sales pursuant to such Registration Statementjurisdiction.
(b5) Promptly following Notify the date (selling Holders and their counsel promptly after USHG or the “Qualification Date”) upon which the Company becomes eligible to use a Trust shall receive notice that any registration statement, supplement or amendment has become effective, or that any registration statement on Form S-3 to register the Registrable Securities for resale, but in no event more than thirty (30) days after the Qualification Date (the “Qualification Deadline”), the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post- effective amendment on Form S-3 to the registration statement on Form S-1) (a “Shelf Registration Statement”) and shall use commercially reasonable efforts to cause such Shelf Registration Statement to be declared effective as promptly as practicable thereafter, provided that the Company shall maintain the effectiveness of all Shelf Registration Statements then in effect and the availability for use of each Prospectus contained therein until such time as a Shelf Registration Statement covering the resale of all the Registrable Securities has been declared effective by the SEC and the Prospectus contained therein is available for use or, if sooner, the expiration of the Effectiveness Period.
(c) If (i) a Registration Statement covering the resale of all of the Registrable Securities required to be covered thereby and required to be filed by the Company pursuant to this Agreement is not declared effective by the SEC on amended or before the Effectiveness Deadline (an “Effectiveness Failure”), (ii) on any day after the Effective Date of a Registration Statement sales of all of the Registrable Securities required to be included on such Registration Statement cannot be made pursuant to such Registration Statement (including, without limitation, because of a failure to keep such Registration Statement effective, a failure to disclose such information as is necessary for sales to be made pursuant to such Registration Statement, a failure to have the shares of Common Stock listed or quoted for trading on Nasdaq (as defined below), any other national securities exchange or any market of the OTC Markets for three (3) consecutive trading dayssupplemented, or a failure to register a sufficient number of shares of Common Stock or by reason of a that any stop order) or the prospectus contained therein is not properly available for use for any reason (other than because of an Allowed Delay) (collectively, a “Maintenance Failure”), or (iii) a Registration Statement is not effective for any reason, the prospectus contained therein is not properly available for use for any reason, or the Company fails to file with the SEC any required reports under Section 13 or 15(d) of the Exchange Act such that it is not in compliance with Rule 144(c)(1) (or Rule 144(i)(2), if applicable) (other than because of an Allowed Delay) (a “Current Public Information Failure”) as a result of which the Purchaser is unable to sell Registrable Securities without restriction under Rule 144 (including, without limitation, volume restrictions), then, as liquidated relief for the damages to any holder by reason of any such delay in, or reduction of, its ability to sell the underlying shares of Common Stock (which remedy, other than the right o require specific performance, shall be exclusive of all other remedies available at law or in equity), the Company shall pay to each holder of Registrable Securities relating to such Registration Statement an amount in cash equal to one percent (1.0%) of the Share Purchase Price (as defined in the Purchase Agreement): (1) within three (3) days after the date of such Effectiveness Failure, Maintenance Failure or Current Public Information Failure, as applicable; and (2) on every thirty (30) day anniversary of (I) an Effectiveness Failure until such Effectiveness Failure is cured; (II) a Maintenance Failure until such Maintenance Failure is cured; and (III) a Current Public Information Failure until the earlier of (i) the date such Current Public Information Failure is cured and (ii) such time that such public information is no longer required pursuant to Rule 144, in each case of 2(I), (II) and (III), pro-rated for periods totaling less than thirty (30) days. The payments to which a holder of Registrable Securities shall be entitled pursuant to this Section 2(c) are referred to herein as “Registration Delay Paymentsorder has been issued.” Following the initial Registration Delay Payment for any particular event or failure (which shall be paid on the date of such event or failure, as set forth above), without limiting the foregoing, once an event or failure giving rise to the Registration Delay Payments is cured and all Registration Delay Payments relating thereto have been paid, then no further Registration Delay Payment(s) shall be due after such cure for that particular failure. In the event the Company fails to make Registration Delay Payments in a timely manner in accordance with the foregoing, such Registration Delay Payments shall bear interest at the rate of one percent (1%) per month (prorated for partial months) until paid in full. Notwithstanding the foregoing, no Registration Delay Payments shall be owed to Purchaser: (i) with respect to an Effectiveness Failure, a Maintenance Failure or a Current Public Information Failure, for any period after the earlier of (x) the date on which Purchaser may conduct a resale of all of its Registrable Securities in reliance on a valid exemption from registration in accordance with Rule 144 or (y) the date on which Purchaser sold, transferred or otherwise disposed of all of its Registrable Securities, (ii) with respect to any Registrable Securities excluded from a Registration Statement by election of the Purchaser and (iii) in respect of any Allowed Delay.
(d) Other than registration statements relating to an offering for the Company’s own account on Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity securities to be issued solely in connection with any equity securities issuable in connection with the Company’s stock option or other employee benefit plans, pre-effective or post-effective amendments to the Company’s recently filed Form S-4 related to the Gryphon Transaction, and post-effective amendments to existing registration statements to keep them current in accordance with existing registration requirements on the date hereof, the Company shall not file any other registration statement without Purchaser’s advance written consent until after the Effectiveness Date.
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Us Home & Garden Inc)
Registration Obligations. In the case of the registration effected by the Company pursuant to this Agreement, the Company will keep the Holders advised in writing as to the initiation of the registration and as to the completion thereof. At its expense, the Company will:
(a) As promptly as practicable following In the Closing Dateevent that Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall prepare and file with the SEC a Registration Statement covering (i) register the resale of the Registrable Securities as would permit the sale and distribution of all the Registrable Securities from time to time pursuant to Rule 415 in the manner on another appropriate form reasonably requested by the Purchaser. The Registration Statement shall be on Form S-1 (or such other form available acceptable to the Company for the registration of the Registrable Securities at the time of filing as determined in good faith by counsel of the Company). The Registration Statement shall contain the “Plan of Distribution” section in substantially the form attached hereto as Annex A, subject to any SEC comments; provided, however, that the Purchaser shall not be named as an “underwriter” in the Registration Statement without the Purchaser’s prior written consent. Such Registration Statement also shall cover, to the extent allowable under the Securities Act Holders and the rules promulgated thereunder (including Rule 416), such indeterminate number of additional shares of Company Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities. Such Registration Statement shall not include any shares of Company Common Stock or other securities for the account of any other holder without the prior written consent of the Purchaser. The Company shall use reasonable best efforts to cause the Registration Statement filed by it to be declared effective by the SEC under the Securities Act as promptly as practicable after the filing thereof but in any event on or prior to the Effectiveness Deadline, and, subject to Section 3.1(mii) hereof, to keep such Registration Statement continuously effective under the Securities Act until such date as all Registrable Securities covered by such Registration Statement have ceased to be Registrable Securities (the “Effectiveness Period”). By 5:30 p.m., Eastern time, on the Effective Date, the Company shall file with the SEC in accordance with Rule 424(b)(3) under the Securities Act the final Prospectus to be used in connection with sales pursuant to such Registration Statement.
(b) Promptly following the date (the “Qualification Date”) upon which the Company becomes eligible to use a registration statement on Form S-3 undertake to register the Registrable Securities for resale, but in no event more than thirty (30) days after the Qualification Date (the “Qualification Deadline”), the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post- effective amendment on Form S-3 to the registration statement on Form S-1) (a “Shelf Registration Statement”) and shall use commercially reasonable efforts to cause as soon as such Shelf Registration Statement to be declared effective as promptly as practicable thereafterform is available, provided that the Company shall maintain the effectiveness of all Shelf the Registration Statements Statement then in effect and the availability for use of each Prospectus contained therein until such time as a Shelf Registration Statement on Form S-3 covering the resale of all the Registrable Securities has been declared effective by the SEC and the Prospectus contained therein is available for use or, if sooner, the expiration of the Effectiveness PeriodCommission.
(cb) If (i) Promptly prepare and file with the SEC a Registration Statement covering the resale of all of with respect to the Registrable Securities required and use commercially reasonable efforts to be covered thereby and required to be filed by the Company pursuant to this Agreement is not declared effective by the SEC on or before the Effectiveness Deadline (an “Effectiveness Failure”), (ii) on any day after the Effective Date of a cause such Registration Statement sales of all of relating to the Registrable Securities required to be included on become effective as soon as practicable after such Registration Statement cannot be made pursuant to such Registration Statement filing (but in no event later than the Effectiveness Deadline) (including, without limitation, because of a failure to keep such Registration Statement effective, a failure to disclose such information as is necessary for sales to be made pursuant to such Registration Statement, a failure to have the shares of Common Stock listed or quoted for trading on Nasdaq (as defined below), any other national securities exchange or any market of the OTC Markets for three (3) consecutive trading days, or a failure to register a sufficient number of shares of Common Stock or by reason of a stop order) or the prospectus contained therein is not properly available for use for any reason (other than because execution of an Allowed Delay) (collectively, a “Maintenance Failure”), or (iii) a Registration Statement is not effective for any reason, the prospectus contained therein is not properly available for use for any reason, or the Company fails undertaking to file with the SEC any required reports post-effective amendments, appropriate qualification under Section 13 applicable blue sky or 15(d) of the Exchange Act such other state securities laws (except that it is not in compliance with Rule 144(c)(1) (or Rule 144(i)(2), if applicable) (other than because of an Allowed Delay) (a “Current Public Information Failure”) as a result of which the Purchaser is unable to sell Registrable Securities without restriction under Rule 144 (including, without limitation, volume restrictions), then, as liquidated relief for the damages to any holder by reason of any such delay in, or reduction of, its ability to sell the underlying shares of Common Stock (which remedy, other than the right o require specific performance, shall be exclusive of all other remedies available at law or in equity), the Company shall pay not be required to each holder qualify the offering under the blue sky laws of any jurisdiction in which the Company would be required to execute a general consent to service of process unless the Company is already subject to service in such jurisdiction) and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the sale and distribution of all such Registrable Securities relating Securities.
(c) Keep such registration effective pursuant to such Registration Statement an amount in cash equal to one percent (1.0%) of the Share Purchase Price (as defined in the Purchase Agreement): (1) within three (3) days after the date of such Effectiveness Failure, Maintenance Failure or Current Public Information Failure, as applicable; and (2) on every thirty (30) day anniversary of (I) an Effectiveness Failure until such Effectiveness Failure is cured; (II) a Maintenance Failure until such Maintenance Failure is cured; and (III) a Current Public Information Failure Rule 415 at all times until the earlier of (i) the date as of which the Investors may sell all of the Registrable Securities covered by such Current Public Information Failure is cured and (ii) such time that such public information is no longer required Registration Statement without restriction pursuant to Rule 144, in each case of 2(I), 144(k) (IIor any successor thereto) and promulgated under the 1933 Act or (III), pro-rated for periods totaling less than thirty (30) days. The payments to which a holder of Registrable Securities shall be entitled pursuant to this Section 2(c) are referred to herein as “Registration Delay Payments.” Following the initial Registration Delay Payment for any particular event or failure (which shall be paid on the date of such event or failure, as set forth above), without limiting the foregoing, once an event or failure giving rise to the Registration Delay Payments is cured and all Registration Delay Payments relating thereto have been paid, then no further Registration Delay Payment(s) shall be due after such cure for that particular failure. In the event the Company fails to make Registration Delay Payments in a timely manner in accordance with the foregoing, such Registration Delay Payments shall bear interest at the rate of one percent (1%) per month (prorated for partial months) until paid in full. Notwithstanding the foregoing, no Registration Delay Payments shall be owed to Purchaser: (i) with respect to an Effectiveness Failure, a Maintenance Failure or a Current Public Information Failure, for any period after the earlier of (xii) the date on which Purchaser may conduct a resale of the Investors shall have sold all of its the Registrable Securities in reliance on a valid exemption from registration in accordance with Rule 144 or (y) the date on which Purchaser sold, transferred or otherwise disposed of all of its Registrable Securities, (ii) with respect to any Registrable Securities excluded from a covered by such Registration Statement by election of (the Purchaser and (iii) in respect of any Allowed Delay“Registration Period”).
(d) Other Ensure that each Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein (in the case of prospectuses, in the light of the circumstances in which they were made) not misleading. The term “commercially reasonable efforts” shall mean, among other things, that the Company shall submit to the SEC, within two Business Days after the later of the date (i) that the Company learns that no review of a particular Registration Statement will be made by the staff of the SEC or that the staff has no further comments on a particular Registration Statement, as the case may be, and (ii) of the approval of Legal Counsel pursuant to Section 2.7(f) (which approval is immediately sought), a request for acceleration of effectiveness of such Registration Statement to a time and date not later than registration statements 48 hours after the submission of such request.
(e) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 2.7(e)) by reason of the Company filing a report on Form 10-Q, Form 10-K or any analogous report under the Securities Exchange Act of 1934, as amended (the “1934 Act”), the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(f) (1) permit Legal Counsel to review and comment upon (i) a Registration Statement at least five Business Days prior to its filing with the SEC and (ii) all amendments and supplements to all Registration Statements (except for Annual Reports on Form 10-K, and Reports on Form 10-Q and any similar or successor reports) within a reasonable number of days prior to their filing with the SEC, and (2) not file any Registration Statement or amendment or supplement thereto in a form to which Legal Counsel reasonably objects. The Company shall not submit a request for acceleration of the effectiveness of a Registration Statement or any amendment or supplement thereto without the prior approval of Legal Counsel, which consent shall not be unreasonably withheld or delayed. The Company shall furnish to Legal Counsel, without charge, (i) copies of any correspondence from the SEC or the staff of the SEC to the Company or its representatives relating to any Registration Statement, (ii) promptly after the same is prepared and filed with the SEC, one copy of any Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, if requested by an offering Investor, and all exhibits and (iii) upon the effectiveness of any Registration Statement, one copy of the prospectus included in such Registration Statement and all amendments and supplements thereto. The Company and Legal Counsel shall reasonably cooperate with each other in performing the Company’s obligations pursuant to this Section 2.7(f).
(g) Furnish to each Investor whose Registrable Securities are included in any Registration Statement, without charge, (i) promptly after the same is prepared and filed with the SEC, at least one copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, if requested by an Investor, all exhibits and each preliminary prospectus, (ii) upon the effectiveness of any Registration Statement, five (5) copies of the prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents, including copies of any preliminary or final prospectus, as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
(h) Notify Legal Counsel and each Investor in writing of the happening of any event, as promptly as practicable after becoming aware of such event, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (provided, that in no event shall such notice contain any material, nonpublic information), and, subject to Section 2.7(s), promptly prepare a supplement or amendment to such Registration Statement to correct such untrue statement or omission, and deliver five (5) copies of such supplement or amendment to Legal Counsel and each Investor (or such other number of copies as Legal Counsel or such Investor may reasonably request). The Company shall also promptly notify Legal Counsel and each Investor in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to Legal Counsel and each Investor by facsimile or e-mail on the same day of such effectiveness and by overnight mail), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
(i) Use commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify Legal Counsel and each Investor who holds Registrable Securities being sold of the issuance of such order or suspension and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
(j) Hold in confidence and not make any disclosure of information concerning an Investor provided to the Company unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement, (iii) the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction, or (iv) such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information
(k) Cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investors may reasonably request and registered in such names as the Investors may request.
(l) Cause all such Registrable Securities to be listed on each, if any, securities exchange on which similar securities issued by the Company are then listed and pay all fees and expenses in connection with satisfying its obligation under this Section 2.7(m).
(m) Provide a transfer agent and registrar for all Registrable Securities and a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration.
(n) Furnish to each Holder a signed counterpart, addressed to such Holder, of an opinion of counsel for the Company, dated the effective date of the registration statement, and in the case of any underwritten public offering obtain “comfort” letters signed by the Company’s own account independent public accountants who have examined and reported on Form S-4 the Company’s financial statements included in the registration statement, to the extent permitted by the standards of the AICPA or Form S-8 other relevant authorities.
(each o) If requested by an Investor, within 5 days of receipt of notice from such Investor, (i) incorporate in a prospectus supplement or post-effective amendment such information as promulgated under the Securities Act) or their then equivalents an Investor reasonably requests to be included therein relating to equity securities the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be issued solely sold in such offering; (ii) make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) supplement or make amendments to any Registration Statement if reasonably requested by an Investor holding any Registrable Securities.
(p) Use commercially reasonable efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other federal or state governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities.
(q) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any equity securities issuable in connection registration hereunder.
(r) Within 2 Business Days after a Registration Statement which covers Registrable Securities is ordered effective by the SEC: (i) file a definitive prospectus with the Company’s stock option or other employee benefit plansSEC under Rule 424(b) of the 1933 Act; and (ii) deliver, pre-effective or post-effective amendments and cause its legal counsel to deliver, to the Company’s recently filed Form S-4 related transfer agent for such Registrable Securities (with copies to the Gryphon Transaction, and post-Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective amendments to existing registration statements to keep them current by the SEC in accordance with existing registration requirements on the date hereof, the Company shall not file any other registration statement without Purchaser’s advance written consent until after the Effectiveness Date.form attached hereto as Exhibit A.
Appears in 1 contract
Samples: Registration Rights Agreement (GreenHunter Energy, Inc.)
Registration Obligations. In the case of the registration effected by the Company pursuant to this Agreement, the Company will keep the Holders advised in writing as to the initiation of the registration and as to the completion thereof. At its expense, the Company will:
(a) As promptly as practicable following In the Closing Dateevent that Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall prepare and file with the SEC a Registration Statement covering (i) register the resale of the Registrable Securities as would permit the sale and distribution of all the Registrable Securities from time to time pursuant to Rule 415 in the manner on another appropriate form reasonably requested by the Purchaser. The Registration Statement shall be on Form S-1 (or such other form available acceptable to the Company for the registration of the Registrable Securities at the time of filing as determined in good faith by counsel of the Company). The Registration Statement shall contain the “Plan of Distribution” section in substantially the form attached hereto as Annex A, subject to any SEC comments; provided, however, that the Purchaser shall not be named as an “underwriter” in the Registration Statement without the Purchaser’s prior written consent. Such Registration Statement also shall cover, to the extent allowable under the Securities Act Holders and the rules promulgated thereunder (including Rule 416), such indeterminate number of additional shares of Company Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities. Such Registration Statement shall not include any shares of Company Common Stock or other securities for the account of any other holder without the prior written consent of the Purchaser. The Company shall use reasonable best efforts to cause the Registration Statement filed by it to be declared effective by the SEC under the Securities Act as promptly as practicable after the filing thereof but in any event on or prior to the Effectiveness Deadline, and, subject to Section 3.1(mii) hereof, to keep such Registration Statement continuously effective under the Securities Act until such date as all Registrable Securities covered by such Registration Statement have ceased to be Registrable Securities (the “Effectiveness Period”). By 5:30 p.m., Eastern time, on the Effective Date, the Company shall file with the SEC in accordance with Rule 424(b)(3) under the Securities Act the final Prospectus to be used in connection with sales pursuant to such Registration Statement.
(b) Promptly following the date (the “Qualification Date”) upon which the Company becomes eligible to use a registration statement on Form S-3 undertake to register the Registrable Securities for resale, but in no event more than thirty (30) days after the Qualification Date (the “Qualification Deadline”), the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post- effective amendment on Form S-3 to the registration statement on Form S-1) (a “Shelf Registration Statement”) and shall use commercially reasonable efforts to cause as soon as such Shelf Registration Statement to be declared effective as promptly as practicable thereafterform is available, provided that the Company shall maintain the effectiveness of all Shelf the Registration Statements Statement then in effect and the availability for use of each Prospectus contained therein until such time as a Shelf Registration Statement on Form S-3 covering the resale of all the Registrable Securities has been declared effective by the SEC and the Prospectus contained therein is available for use or, if sooner, the expiration of the Effectiveness PeriodCommission.
(cb) If (i) Promptly prepare and file with the SEC a Registration Statement covering the resale of all of with respect to the Registrable Securities required and use commercially reasonable efforts to be covered thereby and required to be filed by the Company pursuant to this Agreement is not declared effective by the SEC on or before the Effectiveness Deadline (an “Effectiveness Failure”), (ii) on any day after the Effective Date of a cause such Registration Statement sales of all of relating to the Registrable Securities required to be included on become effective as soon as practicable after such Registration Statement cannot be made pursuant to such Registration Statement filing (but in no event later than the Effectiveness Deadline) (including, without limitation, because of a failure to keep such Registration Statement effective, a failure to disclose such information as is necessary for sales to be made pursuant to such Registration Statement, a failure to have the shares of Common Stock listed or quoted for trading on Nasdaq (as defined below), any other national securities exchange or any market of the OTC Markets for three (3) consecutive trading days, or a failure to register a sufficient number of shares of Common Stock or by reason of a stop order) or the prospectus contained therein is not properly available for use for any reason (other than because execution of an Allowed Delay) (collectively, a “Maintenance Failure”), or (iii) a Registration Statement is not effective for any reason, the prospectus contained therein is not properly available for use for any reason, or the Company fails undertaking to file with the SEC any required reports post-effective amendments, appropriate qualification under Section 13 applicable blue sky or 15(d) of the Exchange Act such other state securities laws (except that it is not in compliance with Rule 144(c)(1) (or Rule 144(i)(2), if applicable) (other than because of an Allowed Delay) (a “Current Public Information Failure”) as a result of which the Purchaser is unable to sell Registrable Securities without restriction under Rule 144 (including, without limitation, volume restrictions), then, as liquidated relief for the damages to any holder by reason of any such delay in, or reduction of, its ability to sell the underlying shares of Common Stock (which remedy, other than the right o require specific performance, shall be exclusive of all other remedies available at law or in equity), the Company shall pay not be required to each holder qualify the offering under the blue sky laws of any jurisdiction in which the Company would be required to execute a general consent to service of process unless the Company is already subject to service in such jurisdiction) and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the sale and distribution of all such Registrable Securities relating Securities.
(c) Keep such registration effective pursuant to such Registration Statement an amount in cash equal to one percent (1.0%) of the Share Purchase Price (as defined in the Purchase Agreement): (1) within three (3) days after the date of such Effectiveness Failure, Maintenance Failure or Current Public Information Failure, as applicable; and (2) on every thirty (30) day anniversary of (I) an Effectiveness Failure until such Effectiveness Failure is cured; (II) a Maintenance Failure until such Maintenance Failure is cured; and (III) a Current Public Information Failure Rule 415 at all times until the earlier of (i) the date as of which the Investors may sell all of the Registrable Securities covered by such Current Public Information Failure is cured and (ii) such time that such public information is no longer required Registration Statement without restriction pursuant to Rule 144, in each case of 2(I), 144(k) (IIor any successor thereto) and promulgated under the 1933 Act or (III), pro-rated for periods totaling less than thirty (30) days. The payments to which a holder of Registrable Securities shall be entitled pursuant to this Section 2(c) are referred to herein as “Registration Delay Payments.” Following the initial Registration Delay Payment for any particular event or failure (which shall be paid on the date of such event or failure, as set forth above), without limiting the foregoing, once an event or failure giving rise to the Registration Delay Payments is cured and all Registration Delay Payments relating thereto have been paid, then no further Registration Delay Payment(s) shall be due after such cure for that particular failure. In the event the Company fails to make Registration Delay Payments in a timely manner in accordance with the foregoing, such Registration Delay Payments shall bear interest at the rate of one percent (1%) per month (prorated for partial months) until paid in full. Notwithstanding the foregoing, no Registration Delay Payments shall be owed to Purchaser: (i) with respect to an Effectiveness Failure, a Maintenance Failure or a Current Public Information Failure, for any period after the earlier of (xii) the date on which Purchaser may conduct a resale of the Investors shall have sold all of its the Registrable Securities in reliance on a valid exemption from registration in accordance with Rule 144 or (y) the date on which Purchaser sold, transferred or otherwise disposed of all of its Registrable Securities, (ii) with respect to any Registrable Securities excluded from a covered by such Registration Statement by election of (the Purchaser and (iii) in respect of any Allowed Delay“Registration Period”).
(d) Other Ensure that each Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein (in the case of prospectuses, in the light of the circumstances in which they were made) not misleading. The term “commercially reasonable efforts” shall mean, among other things, that the Company shall submit to the SEC, within two Business Days after the later of the date (i) that the Company learns that no review of a particular Registration Statement will be made by the staff of the SEC or that the staff has no further comments on a particular Registration Statement, as the case may be, and (ii) of the approval of Legal Counsel pursuant to Section 2.7(f) (which approval is immediately sought), a request for acceleration of effectiveness of such Registration Statement to a time and date not later than registration statements 48 hours after the submission of such request.
(e) Prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 2.7(e)) by reason of the Company filing a report on Form 10-Q, Form 10-K or any analogous report under the Securities Exchange Act of 1934, as amended (the “1934 Act”), the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(f) (1) permit Legal Counsel to review and comment upon (i) a Registration Statement at least five Business Days prior to its filing with the SEC and (ii) all amendments and supplements to all Registration Statements (except for Annual Reports on Form 10-K, and Reports on Form 10-Q and any similar or successor reports) within a reasonable number of days prior to their filing with the SEC, and (2) not file any Registration Statement or amendment or supplement thereto in a form to which Legal Counsel reasonably objects. The Company shall not submit a request for acceleration of the effectiveness of a Registration Statement or any amendment or supplement thereto without the prior approval of Legal Counsel, which consent shall not be unreasonably withheld or delayed. The Company shall furnish to Legal Counsel, without charge, (i) copies of any correspondence from the SEC or the staff of the SEC to the Company or its representatives relating to any Registration Statement, (ii) promptly after the same is prepared and filed with the SEC, one copy of any Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, if requested by an offering Investor, and all exhibits and (iii) upon the effectiveness of any Registration Statement, one copy of the prospectus included in such Registration Statement and all amendments and supplements thereto. The Company and Legal Counsel shall reasonably cooperate with each other in performing the Company’s obligations pursuant to this Section 2.7(f).
(g) Furnish to each Investor whose Registrable Securities are included in any Registration Statement, without charge, (i) promptly after the same is prepared and filed with the SEC, at least one copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, if requested by an Investor, all exhibits and each preliminary prospectus, (ii) upon the effectiveness of any Registration Statement, five (5) copies of the prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request) and (iii) such other documents, including copies of any preliminary or final prospectus, as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.
(h) Notify Legal Counsel and each Investor in writing of the happening of any event, as promptly as practicable after becoming aware of such event, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (provided, that in no event shall such notice contain any material, nonpublic information), and, subject to Section 2.7(s), promptly prepare a supplement or amendment to such Registration Statement to correct such untrue statement or omission, and deliver five (5) copies of such supplement or amendment to Legal Counsel and each Investor (or such other number of copies as Legal Counsel or such Investor may reasonably request). The Company shall also promptly notify Legal Counsel and each Investor in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to Legal Counsel and each Investor by facsimile or e-mail on the same day of such effectiveness and by overnight mail), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
(i) Use commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify Legal Counsel and each Investor who holds Registrable Securities being sold of the issuance of such order or suspension and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
(j) Make available for inspection by (i) any Investor, (ii) Legal Counsel and (iii) one firm of accountants or other agents retained by the Investors (collectively, the “Inspectors”), all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably deemed necessary by each Inspector, and cause the Company’s officers, directors and employees, counsel and the Company’s independent certified public accountants to supply all information which may be necessary and any Inspector may reasonably request; provided, however, that each Inspector shall agree to hold in strict confidence and shall not make any disclosure (except to an Investor) or use of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (a) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required under the 1933 Act, (b) the release of such Records is ordered pursuant to a final, non-appealable subpoena or order from a court or government body of competent jurisdiction, or (c) the information in such Records has been made generally available to the public other than by disclosure in violation of this or any other agreement of which the Inspector has knowledge. Each Investor agrees that it shall, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidential. Nothing herein (or in any other confidentiality agreement between the Company and any Investor) shall be deemed to limit the Investors’ ability to sell Registrable Securities in a manner which is otherwise consistent with applicable laws and regulations.
(k) Hold in confidence and not make any disclosure of information concerning an Investor provided to the Company unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement, (iii) the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction, or (iv) such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information
(l) Cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the Investors may reasonably request and registered in such names as the Investors may request.
(m) Cause all such Registrable Securities to be listed on each, if any, securities exchange on which similar securities issued by the Company are then listed and pay all fees and expenses in connection with satisfying its obligation under this Section 2.7(m).
(n) Provide a transfer agent and registrar for all Registrable Securities and a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration.
(o) Furnish to each Holder a signed counterpart, addressed to such Holder, of an opinion of counsel for the Company, dated the effective date of the registration statement, and in the case of any underwritten public offering obtain “comfort” letters signed by the Company’s own account independent public accountants who have examined and reported on Form S-4 the Company’s financial statements included in the registration statement, to the extent permitted by the standards of the AICPA or Form S-8 other relevant authorities.
(each p) If requested by an Investor, within 5 days of receipt of notice from such Investor, (i) incorporate in a prospectus supplement or post-effective amendment such information as promulgated under the Securities Act) or their then equivalents an Investor reasonably requests to be included therein relating to equity securities the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be issued solely sold in such offering; (ii) make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) supplement or make amendments to any Registration Statement if reasonably requested by an Investor holding any Registrable Securities.
(q) Use commercially reasonable efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other federal or state governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities.
(r) On the date hereof, furnish to the Investors lock-up agreements executed by each Person listed on Exhibit D hereto pursuant to which each such Person shall agree not to sell, transfer or dispose any shares of Common Stock owned by such Person during the 360-day period following the Effective Date.
(s) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in connection with any equity securities issuable in connection registration hereunder.
(t) Within 2 Business Days after a Registration Statement which covers Registrable Securities is ordered effective by the SEC: (i) file a definitive prospectus with the Company’s stock option or other employee benefit plansSEC under Rule 424(b) of the 1933 Act; and (ii) deliver, pre-effective or post-effective amendments and cause its legal counsel to deliver, to the Company’s recently filed Form S-4 related transfer agent for such Registrable Securities (with copies to the Gryphon Transaction, and post-Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective amendments to existing registration statements to keep them current by the SEC in accordance with existing registration requirements on the date hereof, the Company shall not file any other registration statement without Purchaser’s advance written consent until after the Effectiveness Date.form attached hereto as Exhibit A.
Appears in 1 contract
Samples: Registration Rights Agreement (GreenHunter Energy, Inc.)
