Registration of Conversion Shares. (i) The Company agrees that, no later than thirty (30) calendar days after the Conversion Share Delivery Date (the “Filing Date”), the Company will file with the SEC (at the Company’s sole cost and expense) a registration statement registering the resale of the Conversion Shares (the “Registration Statement”) and the Company shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof (and in any event, no later than seventy (70) calendar days following the Conversion Share Delivery Date) (the “Effectiveness Deadline”); provided that the Effectiveness Deadline shall be extended if the Registration Statement is reviewed by, and comments thereto are provided from, the SEC, or the Company encounters other delays associated with third parties, including delays in receiving any applicable reviews or consents of the Company’s independent public accounting firm. The Company will use its commercially reasonable efforts to provide a draft of the Registration Statement to the Holder for review (but not comment other than with respect to the accuracy of the information concerning the Holder included therein) at least two (2) Business Days in advance of filing the Registration Statement; provided that, for the avoidance of doubt, in no event shall the Company be required to delay or postpone the filing of such Registration Statement as a result of or in connection with Investor’s review. In no event shall the undersigned be identified as a statutory underwriter in the Registration Statement unless requested by the SEC; provided, that if the SEC requests that the Holder be identified as a statutory underwriter in the Registration Statement, Investor will have the option, in its sole and absolute discretion, to either (i) have the opportunity to withdraw from the Registration Statement upon its prompt written request to the Company, in which case the Company’s obligation to register the Conversion Shares will be deemed satisfied or (ii) be included as such in the Registration Statement. Notwithstanding the foregoing, if the SEC prevents the Company from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Conversion Shares, such Registration Statement shall register for resale such number of Conversion Shares which is equal to the maximum number of Conversion Shares as is permitted by the SEC. (ii) The Company agrees that, except for such times as the Company is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, the Company will use commercially reasonable efforts to cause such Registration Statement to remain effective with respect to Investor until the earlier of (i) one (1) year from the issuance of the Conversion Shares, (ii) the date on which all of the Conversion Shares shall have been sold, or (iii) on the first date on which the Holder can sell all of its Conversion Shares under Rule 144 of the Securities Act without limitation as to the manner of sale or the amount of such securities that may be sold. For as long as the Registration Statement shall remain effective pursuant to the immediately preceding sentence, the Company will use commercially reasonable efforts to file all reports, and provide all customary and reasonable cooperation, necessary to enable the undersigned to resell the Conversion Shares pursuant to the Registration Statement or Rule 144 of the Securities Act, as applicable, qualify the Conversion Shares for listing on the applicable stock exchange on which the Company’s shares of common stock are then listed, and update or amend the Registration Statement as necessary to include the Conversion Shares. For as long as the Holder holds the Conversion Shares, the Company will use commercially reasonable efforts to file all reports, and provide all customary and reasonable cooperation, necessary to enable the undersigned to resell the Conversion Shares pursuant to Rule 144 of the Securities Act. The Holder agrees to disclose its beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, of Conversion Shares to the Company (or its successor) upon request to assist the Company in making the determination described above. The Company’s obligations to include the Conversion Shares in the Registration Statement are contingent upon the Holder furnishing in writing to the Company such information regarding Investor, the securities of the Company held by Investor and the intended method of disposition of the Conversion Shares as shall be reasonably requested by the Company to effect the registration of the Conversion Shares, and the Holder shall execute such documents for such registration as the Company may reasonably request that are customary of a selling stockholder in similar situations, including providing that the Company shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement during any customary blackout or similar period or as permitted hereunder.
Appears in 16 contracts
Samples: 25% Senior Secured Convertible Promissory Note and Security Agreement (Kiromic Biopharma, Inc.), 25% Senior Secured Convertible Promissory Note and Security Agreement (Kiromic Biopharma, Inc.), 25% Senior Secured Convertible Promissory Note and Security Agreement (Kiromic Biopharma, Inc.)
Registration of Conversion Shares. (i) 4.1 The Company agrees thatshall prepare and file with the SEC a registration statement as soon as practical, no later which registration statement shall include the Conversion Shares and shares of Common Stock issuable pursuant to the Warrants ("Warrant Shares") and shall thereafter use its best efforts to have such registration statement declared effective within 90 days after the Closing Date (the "Target Date") and remain effective until the earlier of the date on which all the Conversion Shares are sold or two years after the Closing Date (the "Effective Period"). The Company shall prepare and file with the 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 throughout the Effective Period and to comply with the provisions of the Securities Act with respect to the sale or other disposition of the Conversion Shares or Warrant Shares covered by such registration statement whenever the Buyer shall desire to sell or otherwise dispose of the same.
4.2 If a registration statement covering all Shares is not effective by the Target Date, the Company shall pay to the Buyers as liquidated damages an aggregate amount equal to one percent ( 1%) of the total purchase price of the Preferred Stock for each thirty (30) day period following the Target Date until such time as the registration statement is declared effective. The payment set forth above shall be pro-rated daily as to any period of less than thirty (30) days. Such payment shall be made to each Buyer by cashier's check or wire transfer in immediately available funds to such account as shall be designated in writing by the Buyer and shall be paid irrespective of the amount of Preferred Stock, Conversion Shares and Warrant Shares held by Buyer on the Target Date and thereafter.
4.3 Any amount payable pursuant to the foregoing provisions shall be delivered on or before the fifth (5th) day following the end of the calendar month in which such payment or delivery obligation arose.
4.4 The Company shall file a request for acceleration of effectiveness of the registration statement within five days after the Conversion Share Delivery Date (the “Filing Date”), the Company will file with the SEC (at the Company’s sole cost and expense) it has received a registration statement registering the resale of the Conversion Shares (the “Registration Statement”) and the Company shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof (and in any event, no later than seventy (70) calendar days following the Conversion Share Delivery Date) (the “Effectiveness Deadline”); provided that the Effectiveness Deadline shall be extended if the Registration Statement is reviewed by, and comments thereto are provided from, the SEC, or the Company encounters other delays associated with third parties, including delays in receiving any applicable reviews or consents of the Company’s independent public accounting firm. The Company will use its commercially reasonable efforts to provide a draft of the Registration Statement to the Holder for review (but not review/no further comment other than with respect to the accuracy of the information concerning the Holder included therein) at least two (2) Business Days in advance of filing the Registration Statement; provided that, for the avoidance of doubt, in no event shall the Company be required to delay or postpone the filing of such Registration Statement as a result of or in connection with Investor’s review. In no event shall the undersigned be identified as a statutory underwriter in the Registration Statement unless requested by the SEC; provided, that if the SEC requests that the Holder be identified as a statutory underwriter in the Registration Statement, Investor will have the option, in its sole and absolute discretion, to either (i) have the opportunity to withdraw determination from the Registration Statement upon its prompt written request to the Company, in which case the Company’s obligation to register the Conversion Shares will be deemed satisfied or (ii) be included as such in the Registration Statement. Notwithstanding the foregoing, if the SEC prevents the Company from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Conversion Shares, such Registration Statement shall register for resale such number of Conversion Shares which is equal to the maximum number of Conversion Shares as is permitted by the SEC.
(ii) The Company agrees that, except for such times as 4.5 It shall be a condition precedent to the obligation of the Company is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, the Company will use commercially reasonable efforts to cause such Registration Statement to remain effective with respect to Investor until the earlier of (i) one (1) year from the issuance of the Conversion Shares, (ii) the date on which all of the register any Conversion Shares shall have been sold, or (iii) on the first date on which the Holder can sell all of its Conversion Shares under Rule 144 of the Securities Act without limitation as to the manner of sale or the amount of such securities that may be sold. For as long as the Registration Statement shall remain effective pursuant to the immediately preceding sentence, the Company will use commercially reasonable efforts to file all reports, and provide all customary and reasonable cooperation, necessary to enable the undersigned to resell the Conversion Warrant Shares pursuant to the Registration Statement or Rule 144 of the Securities Act, as applicable, qualify the Conversion Shares for listing on the applicable stock exchange on which the Company’s shares of common stock are then listed, and update or amend the Registration Statement as necessary to include the Conversion Shares. For as long as the Holder holds the Conversion Shares, the Company will use commercially reasonable efforts to file all reports, and provide all customary and reasonable cooperation, necessary to enable the undersigned to resell the Conversion Shares pursuant to Rule 144 of the Securities Act. The Holder agrees to disclose its beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, of Conversion Shares to the Company (or its successor) upon request to assist the Company in making the determination described above. The Company’s obligations to include the Conversion Shares in the Registration Statement are contingent upon the Holder furnishing in writing this Section 4 that Buyer shall furnish to the Company such information regarding Investor, the securities of the Company Conversion Shares and Warrant Shares held by Investor and the intended method of disposition thereof and other information concerning the Buyer as the Company shall reasonably request and as shall be required in connection with the registration statement to be filed by the Company. If after a registration statement becomes effective the Company advises the Buyer that the Company considers it appropriate to amend or supplement the applicable registration statement, the Buyer shall suspend further sales of the Conversion Shares as shall be reasonably requested and Warrant Shares until the Company advises the Buyer that such registration statement has been amended or supplemented.
4.6 Whenever the Company is required by the Company provisions of this Section 4 to effect the registration of the Conversion SharesShares and Warrant Shares under the Securities Act, the Company shall:
(i) Prepare and file with the Holder shall execute SEC a registration statement with respect to such documents for securities and use its best efforts to cause such registration statement to become and remain effective;
(ii) Prepare and file with the SEC such amendments to such registration statement and supplements to the prospectus contained therein as may be necessary to keep such registration statement effective;
(iii) Furnish to the Buyer and to the underwriters (if any) of the securities being registered such reasonable number of copies of the registration statement, preliminary prospectus, final prospectus and such other documents as the Company Buyer may reasonably request in order to facilitate the public offering of such securities;
(iv) Use its best efforts to register or qualify the securities covered by such registration statement under such state securities or Blue Sky Laws of such jurisdictions as the Buyer may reasonably request within twenty (20) days following the original filing of such registration statement, except that are customary the Company shall not for any purpose be required to execute a general consent to service of process or to qualify to do business as a foreign corporation in any jurisdiction wherein it is not so qualified;
(v) Notify the Buyer, promptly after it shall receive notice thereof, of the time when such registration statement has become effective or a supplement to any prospectus forming a part of such registration statement has been filed;
(vi) Notify the Buyer promptly of any request by the SEC for the amending or supplementing of such registration statement or prospectus or for additional information; and
(vii) Prepare and promptly file with the SEC and promptly notify the Buyer of the filing of such amendment or supplement to such registration statement or prospectus as may be necessary to correct any statements or omissions if, at the time when a prospectus relating to such securities is required to be delivered under the Securities Act, any event shall have occurred as the result of which any such prospectus or any other prospectus as then in effect would include an untrue statement of a selling stockholder material fact or omit to state any material fact necessary to make the statements therein, in similar situationslight of the circumstances in which they were made, including providing not misleading.
4.7 With respect to the inclusion of the Conversion Shares and Warrant Shares in a registration statement pursuant to this Section 4, all registration expenses, fees, costs and expenses of and incidental to such registration, inclusion and public offering in connection therewith shall be borne by the Company; provided, however, that the Buyer shall bear its own professional fees and pro rata share of the underwriting discount and commissions, if any. The fees, costs and expenses of registration to be borne by the Company shall include, without limitation, all registration, filing, printing expenses, fees and disbursements of counsel and accountants for the Company, fees and disbursements of counsel for the underwriter or underwriters of such securities (if any and if the Company and/or selling security holders are required to bear such fees and disbursements), and all legal fees and disbursements and other expenses of complying with state securities or Blue Sky Laws of any jurisdiction in which the securities to be offered are to be registered or qualified.
4.8 Subject to the conditions set forth below, in connection with any registration of the Shares pursuant to this Section 4, the Company agrees to indemnify and hold harmless the Buyer, any underwriter for the Company or acting on behalf of the Buyer and each person, if any, who controls the Buyer, within the meaning of Section 15 of the Securities Act, as follows:
(i) Against any and all loss, claim, damage and expense whatsoever arising out of or based upon (including, but not limited to, any and all expense whatsoever reasonably incurred in investigating, preparing or defending any litigation, commenced or threatened, or any claim whatsoever based upon) any untrue or alleged untrue statement of a material fact contained in any preliminary prospectus (if used prior to the effective date of the registration statement), the registration statement or the prospectus (as from time to time amended and supplemented), or in any application or other document executed by the Company or based upon written information furnished by the Company filed in any jurisdiction in order to qualify the Company's securities under the securities laws thereof, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or any other violation of applicable federal or state statutory or regulatory requirements or limitations relating to action or inaction by the Company in the course of preparing, filing, or implementing such registered offering; provided, however, that the indemnity agreement contained in this section shall not apply to any loss, claim, damage, liability or action arising out of or based upon any untrue or alleged untrue statement or omission made in reliance upon and in conformity with any information furnished in writing to the Company by or on behalf of the Buyer expressly for use in connection therewith or arising out of any action or inaction of the Buyer;
(ii) Subject to the proviso contained in Subsection (i) above, against any and all loss, liability, claim, damage and expense whatsoever to the extent of the aggregate amount paid in settlement of any litigation, commenced or threatened, or of any claim whatsoever based upon any untrue statement or omission (including, but not limited to, any and all expense whatsoever reasonably incurred in investigating, preparing or defending against any such litigation or claim) if such settlement is effected with the written consent of the Company; and
(iii) In no case shall the Company be liable under this indemnity agreement with respect to any claim made against such Company, underwriter or any such controlling person unless the Company shall be notified, by letter or by facsimile confirmed by letter, of any action commenced against such persons, promptly after such person shall have been served with the summons or other legal process giving information as to the nature and basis of the claim. The failure to so notify the Company, if prejudicial in any material respect to the Company's ability to defend such claim, shall relieve the Company from its liability to the indemnified person under this Section 4, but only to the extent that the Company was prejudiced. The failure to so notify the Company shall not relieve the Company from any liability which it may have otherwise than on account of this indemnity agreement. The Company shall be entitled to postpone participate at its own expense in the defense of any suit brought to enforce any such claim, but if the Company elects to assume the defense, such defense shall be conducted by counsel chosen by it, provided such counsel is reasonably satisfactory to the Company or controlling persons, defendants in any suit so brought. In the event the Company elects to assume the defense of any such suit and suspend retain such counsel, the effectiveness Company, underwriter or use controlling persons, defendants in the suit, shall, after the date they are notified of such election, bear the fees and expenses of any counsel thereafter retained by them, as well as any other expenses thereafter incurred by them in connection with the defense thereof; provided, however, that if the Company, underwriter or controlling persons reasonably believe that there may be available to them any defense or counterclaim different than those available to the Company or that representation of such Company, underwriters or controlling persons by counsel for the Company presents a conflict of interest for such counsel, then such Company, underwriter and controlling person shall be entitled to defend such suit with counsel of their own choosing and the Company shall bear the fees, expenses and other costs of such separate counsel.
4.9 Each Buyer agrees to indemnify and hold harmless the Company, each underwriter for the offering, (if any), and each of their officers and directors and agents and each other person, if any, who controls the Company and underwriter within the meaning of Section 15 of the Registration Statement during Securities Act against any customary blackout and all such losses, liabilities, claims, damages and expenses as are indemnified against by the Company under Section 4.6 above; provided, however, that such indemnification by Buyer hereunder shall be limited to any losses, liabilities, claims, damages, or similar period expenses to the extent caused by any untrue statement of a material fact or as permitted hereunder.omission of a material fact (required to be stated therein or necessary to make statements therein not misleading), if any made (or in settlement of any litigation effected with the written consent of such Company, alleged to have been made) in any preliminary prospectus, the registration statement or prospectus or any amendment or supplement thereof or in any application or other document in reliance upon, and in conformity with, written information furnished in respect of such Company by or on behalf of such Company expressly for use in any preliminary prospectus, the registration statement or prospectus or any amendment or supplement thereof or in any such application or other document or arising out of any action or inaction of such Company in implementing such registered offering. Notwithstanding the foregoing, the indemnification obligation of each Buyer shall not exceed the purchase price of the Notes paid by such Buyer. In case any action shall be brought against the Company, or any other person so indemnified, in respect of which indemnity may be sought against any Company, such Company shall have the rights and duties given to the Company, and each other person so indemnified shall have the rights and duties given to the Buyer, by the provisions of Section
Appears in 2 contracts
Samples: Securities Purchase Agreement (Microtel International Inc), Securities Purchase Agreement (Microtel International Inc)
Registration of Conversion Shares. (i) The Company agrees that, no later than thirty (30) calendar days after the Conversion Share Delivery Date (the “Filing Date”), the Company will file with the SEC (at the Company’s sole cost and expense) a registration statement registering the resale of the Conversion Shares (the “Registration Statement”) and the Company shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof (and in any event, no later than seventy (70) calendar days following the Conversion Share Delivery Date) (the “Effectiveness Deadline”); provided that the Effectiveness Deadline shall be extended if the Registration Statement is reviewed by, and comments thereto are provided from, the SEC, or the Company encounters other delays associated with third parties, including delays in receiving any applicable reviews or consents of the Company’s independent public accounting firm. The Company will use its commercially reasonable efforts to provide a draft of the Registration Statement to the Holder for review (but not comment other than with respect to the accuracy of the information concerning the Holder included therein) at least two (2) Business Days in advance of filing the Registration Statement; provided that, for the avoidance of doubt, in no event shall the Company be required to delay or postpone the filing of such Registration Statement as a result of or in connection with Investor’s review. In no event shall the undersigned be identified as a statutory underwriter in the Registration Statement unless requested by the SEC; provided, that if the SEC requests that the Holder be identified as a statutory underwriter in the Registration Statement, Investor will have the option, in its sole and absolute discretion, to either (i) have the opportunity to withdraw from the Registration Statement upon its prompt written request to the Company, in which case the Company’s obligation to register the Conversion Shares will be deemed satisfied or (ii) be included as such in the Registration Statement. Notwithstanding the foregoing, if the SEC prevents the Company from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Conversion Shares, such Registration Statement shall register for resale such number of Conversion Shares which is equal to the maximum number of Conversion Shares as is permitted by the SEC.
(ii) The Company agrees that, except for such times as the Company is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, the Company will use commercially reasonable efforts to cause such Registration Statement to remain effective with respect to Investor until the earlier of (i) one (1) year from the issuance of the Conversion Shares, (ii) the date on which all of the Conversion Shares shall have been sold, or (iii) on the first date on which the Holder can sell all of its Conversion Shares under Rule 144 of the Securities Act without limitation as to the manner of sale or the amount of such securities that may be sold. For as long as the Registration Statement shall remain effective pursuant to the immediately preceding sentence, the Company will use commercially reasonable efforts to file all reports, and provide all customary and reasonable cooperation, necessary to enable the undersigned to resell the Conversion Shares pursuant to the Registration Statement or Rule 144 of the Securities Act, as applicable, qualify the Conversion Shares for listing on the applicable stock exchange on which the Company’s shares of common stock are then listed, and update or amend the Registration Statement as necessary to include the Conversion Shares. For as long as the Holder holds the Conversion Shares, the Company will use commercially reasonable efforts to file all reports, and provide all customary and reasonable cooperation, necessary to enable the undersigned to resell the Conversion Shares pursuant to Rule 144 of the Securities Act. The Holder agrees to disclose its beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, of Conversion Shares to the Company (or its successor) upon request to assist the Company in making the determination described above. The Company’s obligations to include the Conversion Shares in the Registration Statement are contingent upon the Holder furnishing in writing to the Company such information regarding Investor, the securities of the Company held by Investor and the intended method of disposition of the Conversion Shares as shall be reasonably requested by the Company to effect the registration of the Conversion Shares, and the Holder shall execute such documents for such registration as the Company may reasonably request that are customary of a selling stockholder in similar situations, including providing that the Company shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement during any customary blackout or similar period or as permitted hereunder.
Appears in 2 contracts
Samples: 25% Senior Secured Convertible Promissory Note and Security Agreement (Kiromic Biopharma, Inc.), 25% Senior Secured Convertible Promissory Note and Security Agreement (Kiromic Biopharma, Inc.)
Registration of Conversion Shares.
(i) The Company agrees that, no later than thirty (30) calendar days after the Conversion Share Delivery Date (the “Filing Date”), the Company will file with the SEC (at the Company’s sole cost and expense) a registration statement registering the resale of the Conversion Shares (the “Registration Statement”) and the Company shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof (and in any event, no later than seventy (70) calendar days following the Conversion Share Delivery Date) (the “Effectiveness Deadline”); provided that the Effectiveness Deadline shall be extended if the Registration Statement is reviewed by, and comments thereto are provided from, the SEC, or the Company encounters other delays associated with third parties, including delays in receiving any applicable reviews or consents of the Company’s independent public accounting firm. The Company will use its commercially reasonable efforts to provide a draft of the Registration Statement to the Holder for review (but not comment other than with respect to the accuracy of the information concerning the Holder included therein) at least two (2) Business Days in advance of filing the Registration Statement; provided that, for the avoidance of doubt, in no event shall the Company be required to delay or postpone the filing of such Registration Statement as a result of or in connection with Investor’s review. In no event shall the undersigned be identified as a statutory underwriter in the Registration Statement unless requested by the SEC; provided, that if the SEC requests that the Holder be identified as a statutory underwriter in the Registration Statement, Investor will have the option, in its sole and absolute discretion, to either (i) have the opportunity to withdraw from the Registration Statement upon its prompt written request to the Company, in which case the Company’s obligation to register the Conversion Shares will be deemed satisfied or (ii) be included as such in the Registration Statement. Notwithstanding the foregoing, if the SEC prevents the Company from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Conversion Shares, such Registration Statement shall register for resale such number of Conversion Shares which is equal to the maximum number of Conversion Shares as is permitted by the SEC.
(ii) The Company agrees that, except for such times as the Company is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, the Company will use commercially reasonable efforts to cause such Registration Statement to remain effective with respect to Investor until the earlier of (i) one (1) year from the issuance of the Conversion Shares, (ii) the date on which all of the Conversion Shares shall have been sold, or (iii) on the first date on which the Holder can sell all of its Conversion Shares under Rule 144 of the Securities Act without limitation as to the manner of sale or the amount of such securities that may be sold. For as long as the Registration Statement shall remain effective pursuant to the immediately preceding sentence, the Company will use commercially reasonable efforts to file all reports, and provide all customary and reasonable cooperation, necessary to enable the undersigned to resell the Conversion Shares pursuant to the Registration Statement or Rule 144 of the Securities Act, as applicable, qualify the Conversion Shares for listing on the applicable stock exchange on which the Company’s shares of common stock are then listed, and update or amend the Registration Statement as necessary to include the Conversion Shares. For as long as the Holder holds the Conversion Shares, the Company will use commercially reasonable efforts to file all reports, and provide all customary and reasonable cooperation, necessary to enable the undersigned to resell the Conversion Shares pursuant to Rule 144 of the Securities Act. The Holder agrees to disclose its beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, of Conversion Shares to the Company (or its successor) upon request to assist the Company in making the determination described above. The Company’s obligations to include the Conversion Shares in the Registration Statement are contingent upon the Holder furnishing in writing to the Company such information regarding Investor, the securities of the Company held by Investor and the intended method of disposition of the Conversion Shares as shall be reasonably requested by the Company to effect the registration of the Conversion Shares, and the Holder shall execute such documents for such registration as the Company may reasonably request that are customary of a selling stockholder in similar situations, including providing that the Company shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement during any customary blackout or similar period or as permitted hereunder.
Appears in 1 contract
Samples: 25% Senior Secured Convertible Promissory Note and Security Agreement (Kiromic Biopharma, Inc.)
Registration of Conversion Shares. The Corporation shall undertake to file a registration statement on Form S-1 (or such other form as the Corporation may determine is appropriate) with respect to the Common Stock that may be issuable at any time upon the conversion or redemption of the Series J Preferred Stock ("CONVERSION SHARES") as soon as practicable, but no later than 90 days after the date of issue of the Series J Preferred Stock. The Corporation shall use its best efforts to cause the Commission to declare such registration statements (and any necessary amendments thereto) effective. The Corporation shall also use its best efforts to maintain the effectiveness of such registration statements, and to re-file such registration statements from time to time in the event their effectiveness lapses, until all Conversion Shares either issued or that may be issued are Freely Tradeable (as defined in Section 13 below) in the United States.
(1) In case at any time on or after the Issuance Date and prior to the date on which a registration statement covering the Conversion Shares has been declared effective by the Commission, the Corporation shall issue shares of its Common Stock or Common Stock Equivalents (collectively, the "NEWLY ISSUED SHARES"), other than an issuance pro rata to all holders of its outstanding Common Stock, at a price below the Conversion Price of the Common Stock at the time of such issuance, then following such issuance of Newly Issued Shares the Conversion Price shall be adjusted as provided in this Section 8(j). The Conversion Price following any such adjustment shall be determined by multiplying the Conversion Price immediately prior to such adjustment by a fraction, of which the numerator shall be the sum of (a) the number of shares of Common Stock outstanding immediately prior to the issuance of the Newly Issued Shares (calculated on a fully-diluted basis assuming the conversion of all options, warrants, purchase rights or convertible securities which are exercisable at the time of the issuance of the Newly Issued Shares) plus (b) the number of shares of Common Stock which the aggregate consideration, if any, received by the Corporation for the number of Newly Issued Shares would purchase at a price equal to the Conversion Price of the Common Stock at the time of such issuance, and the denominator shall be the sum of (X) the number of shares of Common Stock outstanding immediately prior to the issuance of the Newly Issued Shares (calculated on a fully-diluted basis assuming the exercise or conversion of all options, warrants, purchase rights or convertible securities which are exercisable or convertible at the time of the issuance of the Newly Issued Shares) plus (Y) the number of Newly Issued Shares. The adjustment provided for in this Section 8(j) may be expressed as the following mathematical formula: ( O +(C / CP)) x CP -------------- NCP = ( O + N ) where, C = aggregate consideration received by the Corporation for the Newly Issued Shares N = number of Newly Issued Shares O = number of shares of Common Stock outstanding (on a fully diluted basis, as described above) immediately prior to the issuance of the Newly Issued Shares CP = Conversion Price immediately prior to the issuance of the Newly Issued Shares NCP = Conversion Price immediately after the issuance of the Newly Issued Shares
(2) Notwithstanding the foregoing, no adjustment shall be made under this Section 8(j) by reason of:
(i) The Company agrees that, no later than thirty the issuance by the Corporation of shares of Common Stock pro rata to all holders of the Common Stock so long as (30i) calendar days after any adjustment to the Conversion Share Delivery Date Price that is required by Section 8(a) is made and (ii) the “Filing Date”Corporation shall have given notice of such issuance thereof to the holders pursuant to Section 8(k);
(ii) the issuance by the Corporation of Newly Issued Shares in an offering for cash for the account of the Corporation that is underwritten on a firm commitment basis and is registered under the 1933 Act;
(iii) the issuance by the Corporation of shares of Common Stock upon conversion of the Series J Preferred Stock or upon exercise of the Warrants in accordance with the terms hereof or thereof;
(iv) the issuance by the Corporation of shares of Common Stock upon conversion of the Series G-1 Preferred Stock, Series G-2 Preferred Stock, Series G-3 Preferred Stock, or Series G-4 Preferred Stock currently issues and outstanding, each in accordance with the terms thereof; and
(v) the issuance by the Corporation of shares of Common Stock as dividends on the Series J Preferred Stock in accordance with the terms of Section 4.
(3) Notwithstanding any other provision in this Section 8(j) to the contrary, if a reduction in the Conversion Price pursuant to this Section 8(j) (other than as set forth in this clause 8(j)(3)) would require the Company will file with the SEC (at the Company’s sole cost and expense) a registration statement registering the resale to obtain shareholder approval of the transactions contemplated by the Subscription Agreement pursuant to the rules of AMEX and such shareholder approval has not been obtained, (i) the Conversion Shares Price shall be reduced to the maximum extent that would not require stockholder approval under such rules, and (the “Registration Statement”ii) and the Company shall use its commercially reasonable efforts to have the Registration Statement declared effective obtain such shareholder approval as soon as practicable after the filing thereof (and in any event, no later than seventy (70) calendar days following the Conversion Share Delivery Date) (the “Effectiveness Deadline”); provided that the Effectiveness Deadline shall be extended if the Registration Statement is reviewed by, and comments thereto are provided from, the SEC, or the Company encounters other delays associated with third partiesreasonably practicable, including delays in receiving any applicable reviews or consents by calling a special meeting of the Company’s independent public accounting firm. The Company will use its commercially reasonable efforts shareholders to provide a draft of the Registration Statement to the Holder for review (but not comment other than with respect to the accuracy of the information concerning the Holder included therein) at least two (2) Business Days in advance of filing the Registration Statement; provided that, for the avoidance of doubt, in no event shall the Company be required to delay or postpone the filing of vote on such Registration Statement as a result of or in connection with Investor’s review. In no event shall the undersigned be identified as a statutory underwriter in the Registration Statement unless requested by the SEC; provided, that if the SEC requests that the Holder be identified as a statutory underwriter in the Registration Statement, Investor will have the option, in its sole and absolute discretion, to either (i) have the opportunity to withdraw from the Registration Statement upon its prompt written request to the Company, in which case the Company’s obligation to register the Conversion Shares will be deemed satisfied or (ii) be included as such in the Registration Statement. Notwithstanding the foregoing, if the SEC prevents the Company from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Conversion Shares, such Registration Statement shall register for resale such number of Conversion Shares which is equal to the maximum number of Conversion Shares as is permitted by the SECPrice adjustment.
(ii) The Company agrees that, except for such times as the Company is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, the Company will use commercially reasonable efforts to cause such Registration Statement to remain effective with respect to Investor until the earlier of (i) one (1) year from the issuance of the Conversion Shares, (ii) the date on which all of the Conversion Shares shall have been sold, or (iii) on the first date on which the Holder can sell all of its Conversion Shares under Rule 144 of the Securities Act without limitation as to the manner of sale or the amount of such securities that may be sold. For as long as the Registration Statement shall remain effective pursuant to the immediately preceding sentence, the Company will use commercially reasonable efforts to file all reports, and provide all customary and reasonable cooperation, necessary to enable the undersigned to resell the Conversion Shares pursuant to the Registration Statement or Rule 144 of the Securities Act, as applicable, qualify the Conversion Shares for listing on the applicable stock exchange on which the Company’s shares of common stock are then listed, and update or amend the Registration Statement as necessary to include the Conversion Shares. For as long as the Holder holds the Conversion Shares, the Company will use commercially reasonable efforts to file all reports, and provide all customary and reasonable cooperation, necessary to enable the undersigned to resell the Conversion Shares pursuant to Rule 144 of the Securities Act. The Holder agrees to disclose its beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, of Conversion Shares to the Company (or its successor) upon request to assist the Company in making the determination described above. The Company’s obligations to include the Conversion Shares in the Registration Statement are contingent upon the Holder furnishing in writing to the Company such information regarding Investor, the securities of the Company held by Investor and the intended method of disposition of the Conversion Shares as shall be reasonably requested by the Company to effect the registration of the Conversion Shares, and the Holder shall execute such documents for such registration as the Company may reasonably request that are customary of a selling stockholder in similar situations, including providing that the Company shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement during any customary blackout or similar period or as permitted hereunder.
Appears in 1 contract
Registration of Conversion Shares. (i) The Company agrees that, no later than thirty (30) calendar days after the Conversion Share Delivery Date (the “Filing Date”), the Company will file with the SEC (at the Company’s sole cost and expense) a registration statement registering the resale of the Conversion Shares (the “Registration Statement”) and the Company shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof (and in any event, no later than seventy (70) calendar days following the Conversion Share Delivery Date) (the “Effectiveness Deadline”); provided that the Effectiveness Deadline shall be extended if the Registration Statement is reviewed by, and comments thereto are provided from, the SEC, or the Company encounters other delays associated with third parties, including delays in receiving any applicable reviews or consents of the Company’s independent public accounting firm. The Company will use its commercially reasonable efforts to provide a draft of the Registration Statement to the Holder for review (but not comment other than with respect to the accuracy of the information concerning the Holder included therein) at least two (2) Business Days in advance of filing the Registration Statement; provided that, for the avoidance of doubt, in no event shall the Company be required to delay or postpone the filing of such Registration Statement as a result of or in connection with Investor’s review. In no event shall the undersigned be identified as a statutory underwriter in the Registration Statement unless requested by the SEC; provided, that if the SEC requests that the Holder be identified as a statutory underwriter in the Registration Statement, Investor will have the option, in its sole and absolute discretion, to either (i) have the opportunity to withdraw from the Registration Statement upon its prompt written request to the Company, in which case the Company’s obligation to register the Conversion Shares will be deemed satisfied or (ii) be included as such in the Registration Statement. Notwithstanding the foregoing, if the SEC prevents the Company from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Conversion Shares, such Registration Statement shall register for resale such number of Conversion Shares which is equal to the maximum number of Conversion Shares as is permitted by the SEC.
(ii) The Company agrees that, except for such times as the Company is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, the Company will use commercially reasonable efforts to cause such Registration Statement to remain effective with respect to Investor until the earlier of (i) one (1) year from the issuance of the Conversion Shares, (ii) the date on which all of the Conversion Shares shall have been sold, or (iii) on the first date on which the Holder can sell all of its Conversion Shares under Rule 144 of the Securities Act without limitation as to the manner of sale or the amount of such securities that may be sold. For as long as the Registration Statement shall remain effective pursuant to the immediately preceding sentence, the Company will use commercially reasonable efforts to file all reports, and provide all customary and reasonable cooperation, necessary to enable the undersigned to resell the Conversion Shares pursuant to the Registration Statement or Rule 144 of the Securities Act, as applicable, qualify the Conversion Shares for listing on the applicable stock exchange on which the Company’s shares of common stock are then listed, and update or amend the Registration Statement as necessary to include the Conversion Shares. For as long as the Holder holds the Conversion Shares, the Company will use commercially reasonable efforts to file all reports, and provide all customary and reasonable cooperation, necessary to enable the undersigned to resell the Conversion Shares pursuant to Rule 144 of the Securities Act. The Holder agrees to disclose its beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, of Conversion Shares to the Company (or its successor) upon request to assist the Company in making the determination described above. The Company’s obligations to include the Conversion Shares in the Registration Statement are contingent upon the Holder furnishing in writing to the Company such information regarding Investor, the securities of the Company held by Investor and the intended method of disposition of the Conversion Shares as shall be reasonably requested by the Company to effect the registration of the Conversion Shares, and the Holder shall execute such documents for such registration as the Company may reasonably request that are customary of a selling stockholder in similar situations, including providing that the Company shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement during any customary blackout or similar period or as permitted hereunder.
Appears in 1 contract
Samples: 25% Senior Secured Convertible Promissory Note and Security Agreement (Kiromic Biopharma, Inc.)
Registration of Conversion Shares. (ia) The Company agrees that, no later than thirty within fifteen (3015) calendar days after of the delivery by the Investor of a written request to the Company that the Conversion Share Delivery Date Shares (or a portion thereof) be registered for resale with the SEC (the “Filing Date”), the Company will file with the SEC (at the Company’s sole cost and expense) a registration statement registering the resale of the Conversion Shares (the “Registration Statement”) and the Company shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof (and in any event, no later than seventy thirty (7030) calendar days following the Conversion Share Delivery Filing Date) (the “Effectiveness Deadline”); provided that the Effectiveness Deadline shall be extended to ninety (90) calendar days after the Filing Date if the Registration Statement is reviewed by, and comments thereto are provided from, the SEC; provided, that if such day falls on a Saturday, Sunday or other day that the SEC is closed for business, the Effectiveness Deadline shall be extended to the next Business Day on which the SEC is open for business. Notwithstanding the foregoing, if the Company encounters other delays associated with third partiesis notified (orally or in writing, including delays whichever is earlier) by the SEC that the Registration Statement will not be “reviewed” or subject to further review, the Company shall use its commercially reasonable efforts to have the Registration Statement declared effective within five (5) Business Days of receipt of such notice. Any failure by the Company to file the Registration Statement by the Filing Date or to effect such Registration Statement by the Effectiveness Deadline shall not otherwise relieve the Company of its obligations to file or effect the Registration Statement as set forth above in receiving any applicable reviews or consents of the Company’s independent public accounting firmthis Section 7. The Company will use its commercially reasonable efforts to provide a draft of the Registration Statement to the Holder Investor for review (but not comment other than with respect to the accuracy of the information concerning the Holder Investor included therein) at least two (2) Business Days in advance of filing the Registration Statement; provided that, for the avoidance of doubt, in no event shall the Company be required to delay or postpone the filing of such Registration Statement as a result of or in connection with Investor’s review. In no event shall the undersigned be identified as a statutory underwriter in the Registration Statement unless requested by the SEC; provided, that if the SEC requests that the Holder Investor be identified as a statutory underwriter in the Registration Statement, Investor will have the option, in its sole and absolute discretion, to either (i) have the opportunity to withdraw from the Registration Statement upon its prompt written request to the Company, in which case the Company’s obligation to register the Conversion Shares will be deemed satisfied or (ii) be included as such in the Registration Statement. Notwithstanding the foregoing, if the SEC prevents the Company from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Conversion Shares, such Registration Statement shall register for resale such number of Conversion Shares which is equal to the maximum number of Conversion Shares as is permitted by the SEC.
(ii) The Company agrees that, except for such times as the Company is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, the Company will use commercially reasonable efforts to cause such Registration Statement to remain effective with respect to Investor until the earlier of (i) one (1) year from the issuance of the Conversion Shares, (ii) the date on which all of the Conversion Shares shall have been sold, or (iii) on the first date on which the Holder can sell all of its Conversion Shares under Rule 144 of the Securities Act without limitation as to the manner of sale or the amount of such securities that may be sold. For as long as the Registration Statement shall remain effective pursuant to the immediately preceding sentence, the Company will use commercially reasonable efforts to file all reports, and provide all customary and reasonable cooperation, necessary to enable the undersigned to resell the Conversion Shares pursuant to the Registration Statement or Rule 144 of the Securities Act, as applicable, qualify the Conversion Shares for listing on the applicable stock exchange on which the Company’s shares of common stock are then listed, and update or amend the Registration Statement as necessary to include the Conversion Shares. For as long as the Holder holds the Conversion Shares, the Company will use commercially reasonable efforts to file all reports, and provide all customary and reasonable cooperation, necessary to enable the undersigned to resell the Conversion Shares pursuant to Rule 144 of the Securities Act. The Holder agrees to disclose its beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, of Conversion Shares to the Company (or its successor) upon request to assist the Company in making the determination described above. The Company’s obligations to include the Conversion Shares in the Registration Statement are contingent upon the Holder furnishing in writing to the Company such information regarding Investor, the securities of the Company held by Investor and the intended method of disposition of the Conversion Shares as shall be reasonably requested by the Company to effect the registration of the Conversion Shares, and the Holder shall execute such documents for such registration as the Company may reasonably request that are customary of a selling stockholder in similar situations, including providing that the Company shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement during any customary blackout or similar period or as permitted hereunder.
Appears in 1 contract
Samples: Preferred Stock Purchase Agreement (Calithera Biosciences, Inc.)
Registration of Conversion Shares. (ia) The Company agrees thatshall use its commercially reasonable efforts to prepare and file with the Securities and Exchange Commission (the “SEC”) as soon as practicable, but in no event later than thirty (30) calendar 180 days after following the Conversion Share Delivery Date Closing (the “Filing Date”), the Company will file with the SEC (at the Company’s sole cost and expense) a registration statement registering the resale of the Conversion Shares (the “Registration Statement”) and such other documents as may be necessary in the opinion of counsel for the Company on such form of Registration Statement as is then available to effect a registration respecting the sale by the holders of the Conversion Shares. The Registration Statement filed hereunder, to the extent allowable under the Securities Act and the Rules promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional shares of Company Common Stock as may become issuable upon conversion of the Preferred Stock to prevent dilution resulting from stock splits, stock dividends or similar transactions. The Registration Statement (and each amendment or supplement thereto) shall be provided to (and subject to the approval of, which shall not be unreasonably withheld) Purchaser prior to its filing or other submission. Purchaser and the other holders of Conversion Shares who are eligible to sell Conversion Shares under such Registration Statement, together with their affiliates, are hereafter referred to as “Offering Holders.” The Company will include in such Registration Statement (i) the information required under the Securities Act to be so included concerning the Offering Holders (and each Offering Holder hereby agrees to promptly provide any such information to the Company), including any changes in such information that may be provided by the Offering Holders in writing to the Company from time to time, and (ii) a section entitled “Plan of Distribution” that describes the various procedures that may be used by the Offering Holders in the sale of their Conversion Shares.
(b) The Company shall use its commercially reasonable efforts to have the Registration Statement to be declared effective as soon as reasonably practicable after the filing thereof (and in any event, no later than seventy (70) calendar days following the Conversion Share Delivery Date) (the “Effectiveness Deadline”); provided that the Effectiveness Deadline shall be extended if the Registration Statement is reviewed by, and comments thereto are provided from, the SEC, or the Company encounters other delays associated with third parties, including delays in receiving any applicable reviews or consents of the Company’s independent public accounting firm. The Company will use its commercially reasonable efforts to provide a draft of the Registration Statement to the Holder for review (but not comment other than with respect to the accuracy of the information concerning the Holder included therein) at least two (2) Business Days in advance of filing the Registration Statement; provided that, for the avoidance of doubt, in no event shall the Company be required to delay or postpone the filing of such Registration Statement as a result of or in connection with Investor’s review. In no event shall the undersigned be identified as a statutory underwriter in the Registration Statement unless requested by the SEC; provided, that if the SEC requests that the Holder be identified as a statutory underwriter in the Registration Statement, Investor will have the option, in its sole and absolute discretion, to either (i) have the opportunity to withdraw from the Registration Statement upon its prompt written request to the Company, in which case the Company’s obligation to register the Conversion Shares will be deemed satisfied or (ii) be included as such in the Registration Statement. Notwithstanding the foregoing, if the SEC prevents the Company from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Conversion Shares, such Registration Statement shall register for resale such number of Conversion Shares which is equal to the maximum number of Conversion Shares as is permitted by the SECfiling.
(ii) The Company agrees that, except for such times as the Company is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, the Company will use commercially reasonable efforts to cause such Registration Statement to remain effective with respect to Investor until the earlier of (i) one (1) year from the issuance of the Conversion Shares, (ii) the date on which all of the Conversion Shares shall have been sold, or (iii) on the first date on which the Holder can sell all of its Conversion Shares under Rule 144 of the Securities Act without limitation as to the manner of sale or the amount of such securities that may be sold. For as long as the Registration Statement shall remain effective pursuant to the immediately preceding sentence, the Company will use commercially reasonable efforts to file all reports, and provide all customary and reasonable cooperation, necessary to enable the undersigned to resell the Conversion Shares pursuant to the Registration Statement or Rule 144 of the Securities Act, as applicable, qualify the Conversion Shares for listing on the applicable stock exchange on which the Company’s shares of common stock are then listed, and update or amend the Registration Statement as necessary to include the Conversion Shares. For as long as the Holder holds the Conversion Shares, the Company will use commercially reasonable efforts to file all reports, and provide all customary and reasonable cooperation, necessary to enable the undersigned to resell the Conversion Shares pursuant to Rule 144 of the Securities Act. The Holder agrees to disclose its beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, of Conversion Shares to the Company (or its successor) upon request to assist the Company in making the determination described above. The Company’s obligations to include the Conversion Shares in the Registration Statement are contingent upon the Holder furnishing in writing to the Company such information regarding Investor, the securities of the Company held by Investor and the intended method of disposition of the Conversion Shares as shall be reasonably requested by the Company to effect the registration of the Conversion Shares, and the Holder shall execute such documents for such registration as the Company may reasonably request that are customary of a selling stockholder in similar situations, including providing that the Company shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement during any customary blackout or similar period or as permitted hereunder.
Appears in 1 contract
Registration of Conversion Shares. (i) 4.1 The Company agrees that, no later than thirty (30) calendar days after the Conversion Share Delivery Date (the “Filing Date”), the Company will shall prepare and file with the SEC (at the Company’s sole cost and expense) a registration statement registering the resale of as soon as practical, which registration statement shall include the Conversion Shares and shares of Common Stock issuable pursuant to the Warrants (the “Registration Statement”"Warrant Shares") and the Company shall thereafter use its commercially reasonable best efforts to have the Registration Statement such registration statement declared effective as soon as practicable after the filing thereof (and in any event, no later than seventy (70) calendar days following the Conversion Share Delivery Date) (the “Effectiveness Deadline”); provided that the Effectiveness Deadline shall be extended if the Registration Statement is reviewed by, and comments thereto are provided from, the SEC, or the Company encounters other delays associated with third parties, including delays in receiving any applicable reviews or consents of the Company’s independent public accounting firm. The Company will use its commercially reasonable efforts to provide a draft of the Registration Statement to the Holder for review (but not comment other than with respect to the accuracy of the information concerning the Holder included therein) at least two (2) Business Days in advance of filing the Registration Statement; provided that, for the avoidance of doubt, in no event shall the Company be required to delay or postpone the filing of such Registration Statement as a result of or in connection with Investor’s review. In no event shall the undersigned be identified as a statutory underwriter in the Registration Statement unless requested by the SEC; provided, that if the SEC requests that the Holder be identified as a statutory underwriter in the Registration Statement, Investor will have the option, in its sole and absolute discretion, to either (i) have the opportunity to withdraw from the Registration Statement upon its prompt written request to the Company, in which case the Company’s obligation to register the Conversion Shares will be deemed satisfied or (ii) be included as such in the Registration Statement. Notwithstanding the foregoing, if the SEC prevents the Company from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Conversion Shares, such Registration Statement shall register for resale such number of Conversion Shares which is equal to the maximum number of Conversion Shares as is permitted by the SEC.
(ii) The Company agrees that, except for such times as the Company is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, the Company will use commercially reasonable efforts to cause such Registration Statement to remain effective with respect to Investor until the earlier of (i) one five (15) year from days after the issuance of SEC indicates the Conversion Shares, Registration Statement may be declared effective or (ii) ninety (90) days after the Closing Date (the "Target Date") and remain effective until the earlier of the date on which all the Conversion Shares are sold or two years after the Closing Date (the "Effective Period"). The Company shall prepare and file with the 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 throughout the Effective Period and to comply with the provisions of the Securities Act with respect to the sale or other disposition of the Conversion Shares or Warrant Shares covered by such registration statement whenever the Buyer shall have been sold, desire to sell or (iii) on the first date on which the Holder can sell all of its Conversion Shares under Rule 144 otherwise dispose of the Securities Act without limitation same.
4.2 If a registration statement covering all Shares is not effective by the Target Date, the Company shall pay to the Buyers as liquidated damages an aggregate amount equal to one percent (1%) of the total purchase price of the Preferred Stock for each thirty (30) day period following the Target Date until such time as the registration statement is declared effective. The payment set forth above shall be pro-rated daily as to any period of less than thirty (30) days. Such payment shall be made to each Buyer by cashier's check or wire transfer in immediately available funds to such account as shall be designated in writing by the manner Buyer and shall be paid irrespective of sale or the amount of Preferred Stock, Conversion Shares and Warrant Shares held by Buyer on the Target Date and thereafter. After the expiration of the first thirty (30) day period, the Company shall pay to the Buyer as liquidated damages 2% of the total purchase price of the Preferred Stock for each additional thirty (30) day period until such securities that may be sold. For as long time as the Registration Statement is declared effective, which shall remain effective be pro-rated daily for any period of less than thirty (30) days.
4.3 Any amount payable pursuant to the immediately preceding sentence, foregoing provisions shall be delivered on or before the fifth (5th) day following the end of the calendar month in which such payment or delivery obligation arose.
4.4 The Company will use commercially reasonable efforts shall file a request for acceleration of effectiveness of the registration statement within five days after it has received a no review/no further comment determination from the SEC.
4.5 The Registration Statement shall include only the common stock to file all reports, and provide all customary and reasonable cooperation, necessary to enable the undersigned to resell the Conversion Shares pursuant be issued to the Buyer and other purchasers of the Preferred Shares (except such Registration Statement or Rule 144 of the Securities Act, as applicable, qualify the Conversion Shares for listing on the applicable stock exchange on which the Company’s may include additional shares of common stock are then listed, and update or amend not to exceed 100,000 in the Registration Statement as necessary aggregate).
4.6 It shall be a condition precedent to include the Conversion Shares. For as long as the Holder holds the Conversion Shares, obligation of the Company will use commercially reasonable efforts to file all reports, register any Conversion Shares and provide all customary and reasonable cooperation, necessary to enable the undersigned to resell the Conversion Warrant Shares pursuant to Rule 144 of the Securities Act. The Holder agrees to disclose its beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, of Conversion Shares to the Company (or its successor) upon request to assist the Company in making the determination described above. The Company’s obligations to include the Conversion Shares in the Registration Statement are contingent upon the Holder furnishing in writing this Section 4 that Buyer shall furnish to the Company such information regarding Investor, the securities of the Company Conversion Shares and Warrant Shares held by Investor and the intended method of disposition thereof and other information concerning the Buyer as the Company shall reasonably request and as shall be required in connection with the registration statement to be filed by the Company. If after a registration statement becomes effective the Company advises the Buyer that the Company considers it appropriate to amend or supplement the applicable registration statement, the Buyer shall suspend further sales of the Conversion Shares as shall be reasonably requested and Warrant Shares until the Company advises the Buyer that such registration statement has been amended or supplemented.
4.7 Whenever the Company is required by the Company provisions of this Section 4 to effect the registration of the Conversion SharesShares and Warrant Shares under the Securities Act, the Company shall:
(i) Prepare and file with the Holder shall execute SEC a registration statement with respect to such documents for securities and use its best efforts to cause such registration statement to become and remain effective;
(ii) Prepare and file with the SEC such amendments to such registration statement and supplements to the prospectus contained therein as may be necessary to keep such registration statement effective;
(iii) Furnish to the Buyer and to the underwriters (if any) of the securities being registered such reasonable number of copies of the registration statement, preliminary prospectus, final prospectus and such other documents as the Company Buyer may reasonably request in order to facilitate the public offering of such securities;
(iv) Use its best efforts to register or qualify the securities covered by such registration statement under such state securities or Blue Sky Laws of such jurisdictions as the Buyer may reasonably request within twenty (20) days following the original filing of such registration statement, except that are customary the Company shall not for any purpose be required to execute a general consent to service of process or to qualify to do business as a foreign corporation in any jurisdiction wherein it is not so qualified;
(v) Notify the Buyer, promptly after it shall receive notice thereof, of the time when such registration statement has become effective or a supplement to any prospectus forming a part of such registration statement has been filed;
(vi) Notify the Buyer promptly of any request by the SEC for the amending or supplementing of such registration statement or prospectus or for additional information; and
(vii) Prepare and promptly file with the SEC and promptly notify the Buyer of the filing of such amendment or supplement to such registration statement or prospectus as may be necessary to correct any statements or omissions if, at the time when a prospectus relating to such securities is required to be delivered under the Securities Act, any event shall have occurred as the result of which any such prospectus or any other prospectus as then in effect would include an untrue statement of a selling stockholder material fact or omit to state any material fact necessary to make the statements therein, in similar situationslight of the circumstances in which they were made, including providing not misleading.
4.8 With respect to the inclusion of the Conversion Shares and Warrant Shares in a registration statement pursuant to this Section 4, all registration expenses, fees, costs and expenses of and incidental to such registration, inclusion and public offering in connection therewith shall be borne by the Company; provided, however, that the Buyer shall bear its own professional fees and pro rata share of the underwriting discount and commissions, if any. The fees, costs and expenses of registration to be borne by the Company shall include, without limitation, all registration, filing, printing expenses, fees and disbursements of counsel and accountants for the Company, fees and disbursements of counsel for the underwriter or underwriters of such securities (if any and if the Company and/or selling security holders are required to bear such fees and disbursements), and all legal fees and disbursements and other expenses of complying with state securities or Blue Sky Laws of any jurisdiction in which the securities to be offered are to be registered or qualified.
4.9 Subject to the conditions set forth below, in connection with any registration of the Shares pursuant to this Section 4, the Company agrees to indemnify and hold harmless the Buyer, any underwriter for the Company or acting on behalf of the Buyer and each person, if any, who controls the Buyer, within the meaning of Section 15 of the Securities Act, as follows:
(i) Against any and all loss, claim, damage and expense whatsoever arising out of or based upon (including, but not limited to, any and all expense whatsoever reasonably incurred in investigating, preparing or defending any litigation, commenced or threatened, or any claim whatsoever based upon) any untrue or alleged untrue statement of a material fact contained in any preliminary prospectus (if used prior to the effective date of the registration statement), the registration statement or the prospectus (as from time to time amended and supplemented), or in any application or other document executed by the Company or based upon written information furnished by the Company filed in any jurisdiction in order to qualify the Company's securities under the securities laws thereof, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or any other violation of applicable federal or state statutory or regulatory requirements or limitations relating to action or inaction by the Company in the course of preparing, filing, or implementing such registered offering; provided, however, that the indemnity agreement contained in this section shall not apply to any loss, claim, damage, liability or action arising out of or based upon any untrue or alleged untrue statement or omission made in reliance upon and in conformity with any information furnished in writing to the Company by or on behalf of the Buyer expressly for use in connection therewith or arising out of any action or inaction of the Buyer;
(ii) Subject to the proviso contained in Subsection (i) above, against any and all loss, liability, claim, damage and expense whatsoever to the extent of the aggregate amount paid in settlement of any litigation, commenced or threatened, or of any claim whatsoever based upon any untrue statement or omission (including, but not limited to, any and all expense whatsoever reasonably incurred in investigating, preparing or defending against any such litigation or claim) if such settlement is effected with the written consent of the Company; and
(iii) In no case shall the Company be liable under this indemnity agreement with respect to any claim made against such Company, underwriter or any such controlling person unless the Company shall be notified, by letter or by facsimile confirmed by letter, of any action commenced against such persons, promptly after such person shall have been served with the summons or other legal process giving information as to the nature and basis of the claim. The failure to so notify the Company, if prejudicial in any material respect to the Company's ability to defend such claim, shall relieve the Company from its liability to the indemnified person under this Section 4, but only to the extent that the Company was prejudiced. The failure to so notify the Company shall not relieve the Company from any liability which it may have otherwise than on account of this indemnity agreement. The Company shall be entitled to postpone participate at its own expense in the defense of any suit brought to enforce any such claim, but if the Company elects to assume the defense, such defense shall be conducted by counsel chosen by it, provided such counsel is reasonably satisfactory to the Company or controlling persons, defendants in any suit so brought. In the event the Company elects to assume the defense of any such suit and suspend retain such counsel, the effectiveness Company, underwriter or use controlling persons, defendants in the suit, shall, after the date they are notified of such election, bear the fees and expenses of any counsel thereafter retained by them, as well as any other expenses thereafter incurred by them in connection with the defense thereof; provided, however, that if the Company, underwriter or controlling persons reasonably believe that there may be available to them any defense or counterclaim different than those available to the Company or that representation of such Company, underwriters or controlling persons by counsel for the Company presents a conflict of interest for such counsel, then such Company, underwriter and controlling person shall be entitled to defend such suit with counsel of their own choosing and the Company shall bear the fees, expenses and other costs of such separate counsel.
4.10 Each Buyer agrees to indemnify and hold harmless the Company, each underwriter for the offering, (if any), and each of their officers and directors and agents and each other person, if any, who controls the Company and underwriter within the meaning of Section 15 of the Registration Statement during Securities Act against any customary blackout and all such losses, liabilities, claims, damages and expenses as are indemnified against by the Company under Section 4.6 above; provided, however, that such indemnification by Buyer hereunder shall be limited to any losses, liabilities, claims, damages, or similar period expenses to the extent caused by any untrue statement of a material fact or as permitted hereunder.omission of a material fact (required to be stated therein or necessary to make statements therein not misleading), if any made (or in settlement of any litigation effected with the written consent of such Company, alleged to have been made) in any preliminary prospectus, the registration statement or prospectus or any amendment or supplement thereof or in any application or other document in reliance upon, and in conformity with, written information furnished in respect of such Company by or on behalf of such Company expressly for use in any preliminary prospectus, the registration statement or prospectus or any amendment or supplement thereof or in any such application or other document or arising out of any action or inaction of such Company in implementing such registered offering. Notwithstanding the foregoing, the indemnification obligation of each Buyer shall not exceed the purchase price of the Notes paid by such Buyer. In case any action shall be brought against the Company, or any other person so indemnified, in respect of which indemnity may be sought against any Company, such Company shall have the rights and duties given to the Company, and each other person so indemnified shall have the rights and duties given to the Buyer, by the provisions of Section
Appears in 1 contract
Samples: Securities Purchase Agreement (Microtel International Inc)
Registration of Conversion Shares. (i) The Subject to the terms of Section 10 hereof, the Company agrees that, no later than thirty that within forty-five (3045) calendar days after the Conversion Share Delivery Closing Date (the “Filing Date”)hereof, the Company will it shall prepare and file with the SEC (at the Company’s sole cost and expense) Commission, a registration statement registering on Form S-3 and such other documents, including a prospectus, as may be necessary in the resale opinion of counsel for the Company in order to comply with the provisions of the Conversion Act, so as to permit a public offering and sale by the Buyer of up to 2,200,000 Shares (issuable upon conversion of the “Registration Statement”) 3,000 shares of Preferred to be initially sold to the Buyer hereunder and issuable as payment of dividends on the Preferred pursuant to the terms of the Preferred and the 350,000 Shares issuable upon exercise of the Warrants issued to the Buyer under Section 1(iii)(a). The Company shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof (and in any event, no later than seventy (70) calendar days following the Conversion Share Delivery Date) (the “Effectiveness Deadline”); provided that the Effectiveness Deadline shall be extended if the Registration Statement is reviewed by, and comments thereto are provided from, the SEC, or the Company encounters other delays associated with third parties, including delays in receiving any applicable reviews or consents of the Company’s independent public accounting firm. The Company will use its commercially reasonable efforts to provide a draft of the Registration Statement to the Holder for review (but not comment other than with respect to the accuracy of the information concerning the Holder included therein) at least two (2) Business Days in advance of filing the Registration Statement; provided that, for the avoidance of doubt, in no event shall the Company be required to delay or postpone the filing of such Registration Statement as a result of or in connection with Investor’s review. In no event shall the undersigned be identified as a statutory underwriter in the Registration Statement unless requested by the SEC; provided, that if the SEC requests that the Holder be identified as a statutory underwriter in the Registration Statement, Investor will have the option, in its sole and absolute discretion, to either (i) have the opportunity to withdraw from the Registration Statement upon its prompt written request to the Company, in which case the Company’s obligation to register the Conversion Shares will be deemed satisfied or (ii) be included as such in the Registration Statement. Notwithstanding the foregoing, if the SEC prevents the Company from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Conversion Shares, such Registration Statement shall register for resale such number of Conversion Shares which is equal to the maximum number of Conversion Shares as is permitted by the SEC.
(ii) The Company agrees that, except for such times as the Company is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, the Company will use commercially reasonable efforts to cause such Registration Statement registration statement to remain become effective at the earliest possible date after filing. In connection with respect the offering of such Shares registered pursuant to Investor until this Section 10, the earlier Company shall take such actions as shall be reasonably necessary to qualify the Shares covered by such registration statement under such "blue sky" or other state securities laws for offer and sale as shall be reasonably necessary to permit the public offering and the sale of Shares covered by such registration statement; provided, however, that the Company shall not be required (i) one (1) year from the issuance of the Conversion Sharesto qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph, (ii) the date on which all of the Conversion Shares shall have been soldto subject itself to taxation in any such jurisdiction, or (iii) on to consent to general service of process in any such jurisdiction. It is expressly agreed that in no event are any registration rights being granted to the first date on which Preferred itself, but only with respect to the Holder can sell all of its Conversion underlying Shares under Rule 144 issuable upon conversion of the Securities Act without limitation as Preferred, and exercise of the Warrants. In the event that the 2,200,000 Shares registered pursuant to this Section 10(a), are not sufficient to effect conversion of the outstanding Preferred sold to the manner Buyer, to pay all dividends, and to effect the exercise of sale or the amount of such securities that may be sold. For as long as the Registration Statement shall remain effective pursuant to the immediately preceding sentenceWarrants, than the Company will use commercially reasonable efforts shall within thirty (30) days file with the Commission all necessary documents to file all reports, and provide all customary and reasonable cooperation, necessary to enable increase the undersigned to resell the Conversion Shares pursuant to the Registration Statement or Rule 144 number of the Securities Act, as applicable, qualify the Conversion Shares for listing on the applicable stock exchange on which the Company’s shares of common stock are then listed, and update or amend the Registration Statement as necessary to include the Conversion Shares. For as long as the Holder holds the Conversion Shares, the Company will use commercially reasonable efforts to file all reports, and provide all customary and reasonable cooperation, necessary to enable the undersigned to resell the Conversion Shares pursuant to Rule 144 of the Securities Act. The Holder agrees to disclose its beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, of Conversion Shares to the Company (or its successor) upon request to assist the Company in making the determination described above. The Company’s obligations to include the Conversion Shares in the Registration Statement are contingent upon Company's registration statement in order to effect conversion of the Holder furnishing in writing outstanding Preferred sold to the Company such information regarding InvestorBuyer, the securities of the Company held by Investor and the intended method of disposition of the Conversion Shares as shall be reasonably requested by the Company to pay all dividends, and to effect the registration exercise of the Conversion Shares, and the Holder shall execute such documents for such registration as the Company may reasonably request that are customary of a selling stockholder in similar situations, including providing that the Company shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement during any customary blackout or similar period or as permitted hereunderall Warrants.
Appears in 1 contract
Samples: Private Securities Subscription Agreement (Perma Fix Environmental Services Inc)
Registration of Conversion Shares. (i) The Company agrees that, no later than thirty (30) calendar days after the Conversion Share Delivery Date (the “Filing Date”), the Company will file with the SEC (at the Company’s sole cost and expense) a registration statement registering the resale of the Conversion Shares (the “Registration Statement”) and the Company shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof (and in any event, no later than seventy (70) calendar days following the Conversion Share Delivery Date) (the “Effectiveness Deadline”); provided that the Effectiveness Deadline shall be extended if the Registration Statement is reviewed by, and comments thereto are provided from, the SEC, or the Company encounters other delays associated with third parties, including delays in receiving any applicable reviews or consents of the Company’s independent public accounting firm. The Company will use its commercially reasonable efforts to provide a draft of the Registration Statement to the Holder for review (but not comment other than with respect to the accuracy of the information concerning the Holder included therein) at least two (2) Business Days in advance of filing the Registration Statement; provided that, for the avoidance of doubt, in no event shall the Company be required to delay or postpone the filing of such Registration Statement as a result of or in connection with Investor’s review. In no event shall the undersigned be identified as a statutory underwriter in the Registration Statement unless requested by the SEC; provided, that if the SEC requests that the Holder be identified as a statutory underwriter in the Registration Statement, Investor will have the option, in its sole and absolute discretion, to either (i) have the opportunity to withdraw from the Registration Statement upon its prompt written request to the Company, in which case the Company’s obligation to register the Conversion Shares will be deemed satisfied or (ii) be included as such in the Registration Statement. Notwithstanding the foregoing, if the SEC prevents the Company from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Conversion Shares, such Registration Statement shall register for resale such number of Conversion Shares which is equal to the maximum number of Conversion Shares as is permitted by the SEC.
(ii) The Company agrees that, except for such times as the Company is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, the Company will use commercially reasonable efforts to cause such Registration Statement to remain effective with respect to Investor until the earlier of (i) one (1) year from the issuance of the Conversion Shares, (ii) the date on which all of the Conversion Shares shall have been sold, or (iii) on the first date on which the Holder can sell all of its Conversion Shares under Rule 144 of the Securities Act without limitation as to the manner of sale or the amount of such securities that may be sold. For as long as the Registration Statement shall remain effective pursuant to the immediately preceding sentence, the Company will use commercially reasonable efforts to file all reports, and provide all customary and reasonable cooperation, necessary to enable the undersigned to resell the Conversion Shares pursuant to the Registration Statement or Rule 144 of the Securities Act, as applicable, qualify the Conversion Shares for listing on the applicable stock exchange on which the Company’s shares of common stock are then listed, and update or amend the Registration Statement as necessary to include the Conversion Shares. For as long as the Holder holds the Conversion Shares, the Company will use commercially reasonable efforts to file all reports, and provide all customary and reasonable cooperation, necessary to enable the undersigned to resell the Conversion Shares pursuant to Rule 144 of the Securities Act. The Holder agrees to disclose its beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, of Conversion Shares to the Company (or its successor) upon request to assist the Company in making the determination described above. The Company’s obligations to include the Conversion Shares in the Registration Statement are contingent upon the Holder furnishing in writing to the Company such information regarding Investor, the securities of the Company held by Investor and the intended method of disposition of the Conversion Shares as shall be reasonably requested by the Company to effect the registration of the Conversion Shares, and the Holder shall execute such documents for such registration as the Company may reasonably request that are customary of a selling stockholder in similar situations, including providing that the Company shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement during any customary blackout or similar period or as permitted hereunder.
Appears in 1 contract
Samples: 25% Senior Secured Convertible Promissory Note and Security Agreement (Kiromic Biopharma, Inc.)
Registration of Conversion Shares. (i) The Company agrees that, no later than thirty (30) calendar days after the Conversion Share Delivery Date (the “Filing Date”), the Company will file with the SEC (at the Company’s sole cost and expense) a registration statement registering the resale of the Conversion Shares (the “Registration Statement”) and the Company shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof (and in any event, no later than seventy (70) calendar days following the Conversion Share Delivery Date) (the “Effectiveness Deadline”); provided that the Effectiveness Deadline shall be extended if the Registration Statement is reviewed by, and comments thereto are provided from, the SEC, or the Company encounters other delays associated with third parties, including delays in receiving any applicable reviews or consents of the Company’s independent public accounting firm. The Company will use its commercially reasonable efforts to provide a draft of the Registration Statement to the Holder for review (but not comment other than with respect to the accuracy of the information concerning the Holder included therein) at least two (2) Business Days in advance of filing the Registration Statement; provided that, for the avoidance of doubt, in no event shall the Company be required to delay or postpone the filing of such Registration Statement as a result of or in connection with Investor’s review. In no event shall the undersigned be identified as a statutory underwriter in the Registration Statement unless requested by the SEC; provided, that if the SEC requests that the Holder be identified as a statutory underwriter in the Registration Statement, Investor will have the option, in its sole and absolute discretion, to either (i) have the opportunity to withdraw from the Registration Statement upon its prompt written request to the Company, in which case the Company’s obligation to register the Conversion Shares will be deemed satisfied or (ii) be included as such in the Registration Statement. Notwithstanding the foregoing, if the SEC prevents the Company from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Conversion Shares, such Registration Statement shall register for resale such number of Conversion Shares which is equal to the maximum number of Conversion Shares as is permitted by the SEC.
(ii) The Company agrees that, except for such times as the Company is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, the Company will use commercially reasonable efforts to cause such Registration Statement to remain effective with respect to Investor until the earlier of (i) one (1) year from the issuance of the Conversion Shares, (ii) the date on which all of the Conversion Shares shall have been sold, or (iii) on the first date on which the Holder can sell all of its Conversion Shares under Rule 144 of the Securities Act without limitation as to the manner of sale or the amount of such securities that may be sold. For as long as the Registration Statement shall remain effective pursuant to the immediately preceding sentence, the Company will use commercially reasonable efforts to file all reports, and provide all customary and reasonable cooperation, necessary to enable the undersigned to resell the Conversion Shares pursuant to the Registration Statement or Rule 144 of the Securities Act, as applicable, qualify the Conversion Shares for listing on the applicable stock exchange on which the Company’s shares of common stock are then listed, and update or amend the Registration Statement as necessary to include the Conversion Shares. For as long as the Holder holds the Conversion Shares, the Company will use commercially reasonable efforts to file all reports, and provide all customary and reasonable cooperation, necessary to enable the undersigned to resell the Conversion Shares pursuant to Rule 144 of the Securities Act. The Holder agrees to disclose its beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, of Conversion Shares to the Company (or its successor) upon request to assist the Company in making the determination described above. The Company’s obligations to include the Conversion Shares in the Registration Statement are contingent upon the Holder furnishing in writing to the Company such information regarding Investor, the securities of the Company held by Investor and the intended method of disposition of the Conversion Shares as shall be reasonably requested by the Company to effect the registration of the Conversion Shares, and the Holder shall execute such documents for such registration as the Company may reasonably request that are customary of a selling stockholder in similar situations, including providing that the Company shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement during any customary blackout or similar period or as permitted hereunder.
Appears in 1 contract
Samples: 25% Senior Secured Convertible Promissory Note and Security Agreement (Kiromic Biopharma, Inc.)
Registration of Conversion Shares. (ia) The Company Subject to Section 8.23(f) and Section 8.23(k) the Parent agrees that, no later than thirty within forty-five (3045) calendar days after the following any Conversion Share Delivery Date (the “Filing Date”), the Company Parent will file with the SEC Commission (at the CompanyParent’s sole cost and expense) a registration statement registering the resale of the Conversion Shares (the a “Conversion Shares Registration Statement”) ), and the Company Parent shall use its commercially reasonable efforts to have the Conversion Shares Registration Statement declared effective as soon as practicable after the filing thereof (and thereof, but in any event, event no later than seventy ninety (7090) calendar days following after the applicable Conversion Share Delivery Date) Date (the “Conversion Shares Effectiveness Deadline”); provided that the Conversion Shares Effectiveness Deadline shall be extended to one hundred twenty (120) calendar days after such Conversion Date if the Conversion Shares Registration Statement is reviewed by, and comments thereto are provided from, the SEC, or Commission; provided further that the Company encounters other delays associated with third parties, including delays in receiving any applicable reviews or consents of Parent shall have the Company’s independent public accounting firm. The Company will use its commercially reasonable efforts to provide a draft of the Conversion Shares Registration Statement to the Holder for review declared effective within ten (but not comment other than with respect to the accuracy of the information concerning the Holder included therein) at least two (210) Business Days after the date the Parent is notified (orally or in advance writing, whichever is earlier) by the staff of filing the Commission that the Conversion Shares Registration StatementStatement will not be “reviewed” or will not be subject to further review; provided thatfurther that (i) if the Conversion Shares Effectiveness Deadline falls on a Saturday, Sunday or other day that the Commission is closed for business, the avoidance Conversion Shares Effectiveness Deadline shall be extended to the next Business Day on which the Commission is open for business and (ii) if the Commission is closed for operations due to a government shutdown the Conversion Shares Effectiveness Deadline shall be extended by the same number of doubt, Business Days that the Commission remained closed. Unless otherwise agreed to in no event shall writing by the Company be required applicable Lenders prior to delay or postpone the filing of such the Conversion Shares Registration Statement as a result of or in connection with Investor’s review. In Statement, no event Lender shall the undersigned be identified as a statutory underwriter in the Conversion Shares Registration Statement unless requested by the SECStatement; provided, provided that if the SEC Commission requests that the Holder any Lender be identified as a statutory underwriter in the Conversion Shares Registration Statement, Investor such Lender will have the option, in its sole and absolute discretion, to either (i) have the opportunity to withdraw from the Conversion Shares Registration Statement upon its prompt written request to the Company, in which case the Company’s obligation to register the Conversion Shares will be deemed satisfied or (ii) be included as such in the Registration StatementParent. Notwithstanding the foregoing, if the SEC Commission prevents the Company Parent from including any or all of the shares proposed to be registered under the Conversion Shares Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Equity Interests proposed to be covered by the Conversion SharesShares Registration Statement by the applicable stockholders or otherwise, such Conversion Shares Registration Statement shall register for resale such number of Conversion Shares such Equity Interests which is equal to the maximum number of Conversion Shares such Equity Interests as is permitted by the SECCommission. In such event, the number of such Equity Interests or other shares to be registered for each selling stockholder named in the Conversion Shares Registration Statement shall be reduced pro rata among all such selling stockholders and as promptly as practicable after being permitted to register additional shares under Rule 415 under the Securities Act, the Parent shall amend the Conversion Shares Registration Statement or file one or more new Conversion Shares Registration Statement(s) (such amendment or new Conversion Shares Registration Statement shall also be deemed to be a “Conversion Shares Registration Statement” hereunder) to register such additional Equity Interests and cause such amendment or Conversion Shares Registration Statement(s) to become effective as promptly as practicable after the filing thereof, but in any event no later than thirty (30) calendar days after the filing of such Conversion Shares Registration Statement (the “Conversion Shares Additional Effectiveness Deadline”); provided that the Conversion Shares Additional Effectiveness Deadline shall be extended to one hundred thirty-five (135) calendar days after the filing of such Conversion Shares Registration Statement if such Conversion Shares Registration Statement is reviewed by, and comments thereto are provided from, the Commission; provided further that the Parent shall have such Conversion Shares Registration Statement declared effective within ten (10) Business Days after the date the Parent is notified (orally or in writing, whichever is earlier) by the staff of the Commission that such Conversion Shares Registration Statement will not be “reviewed” or will not be subject to further review; provided further that (i) if such day falls on a Saturday, Sunday or other day that the Commission is closed for business, the Conversion Shares Additional Effectiveness Deadline shall be extended to the next Business Day on which the Commission is open for business and (ii) if the Commission is closed for operations due to a government shutdown, the Conversion Shares Effectiveness Deadline shall be extended by the same number of Business Days that the Commission remained closed. Any failure by the Parent to have a Conversion Shares Registration Statement declared effective by the Conversion Shares Effectiveness Deadline or Conversion Shares Additional Effectiveness Deadline shall not otherwise relieve the Parent of its obligations to file or effect a Conversion Shares Registration Statement as set forth in this Section 8.23.
(iib) The Company Parent agrees that, except for such times as the Company Parent is permitted hereunder to suspend the use of the prospectus forming part of a Conversion Shares Registration Statement, the Company Parent will use its commercially reasonable efforts to cause such Conversion Shares Registration Statement to remain effective with respect to Investor the applicable Lenders, including to prepare and file any post-effective amendments to such Conversion Shares Registration Statement or supplements to the related prospectus such that the prospectus will not include any untrue statement or a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, until the earlier earliest to occur of (i) one (1) year from the issuance of the Conversion Shares, (ii) the date on which all of the applicable Lenders cease to hold any Conversion Shares shall have been sold, or issued pursuant to this Agreement and (iiiii) on the first date on which the Holder applicable Lenders can sell all of its their respective Conversion Shares issued pursuant to this Agreement (or shares received in exchange therefor) under Rule 144 of the Securities Act without limitation as to the manner of sale or the amount of such securities that may be soldsold and without the requirement for the Parent to be in compliance with the current public information required under Rule 144(c)(l) (or Rule 144(i)(2), if applicable) (the earliest of clauses (i) and (ii), the “Conversion Shares End Date”). For as long as the Registration Statement shall remain effective pursuant Prior to the immediately preceding sentenceConversion Shares End Date, the Company Parent will use commercially reasonable efforts to (1) obtain the withdrawal of any order suspending the effectiveness of any Conversion Shares Registration Statement as soon as reasonably practicable, file all reports, and provide all customary and reasonable cooperation, necessary to enable the undersigned applicable Lenders to resell the Conversion Shares pursuant to the Conversion Shares Registration Statement or Rule 144 of the Securities Act, as applicable, and (2) qualify the Conversion Shares for listing on the applicable stock exchange on which the Company’s shares of common stock are then listed, Principal Market and update or amend the Conversion Shares Registration Statement as necessary to include the Conversion Shares. For as long as the Holder holds the Conversion Shares, the Company The Parent will use its commercially reasonable efforts to (A) for so long as any applicable Lender holds any Conversion Shares, make and keep public information available (as those terms are understood and defined in Rule 144) and file with the Commission in a timely manner all reports, reports and provide all customary and reasonable cooperation, necessary other documents required of the Parent under the Exchange Act so long as the Parent remains subject to such requirements to enable the undersigned any such Lender to resell the Conversion Shares pursuant to Rule 144, (B) at the reasonable request of any applicable Lender, deliver all the necessary documentation to cause the Parent’s transfer agent to remove all restrictive legends from any Conversion Shares being sold under the Conversion Shares Registration Statement or pursuant to Rule 144 at the time of sale of its Conversion Shares, or that may be sold by any applicable Lender without restriction under Rule 144, including without limitation, any volume and manner of sale restrictions, and (C) cause its legal counsel to deliver to the Securities Acttransfer agent the necessary legal opinions required by the transfer agent, if any, in connection with the instruction under clause (B) of this Section 8.23(b) upon the receipt of any applicable Lender representation letters and such other customary supporting documentation as requested by (and in a form reasonably acceptable to) such counsel. The Holder agrees applicable Lenders agree to disclose its their respective beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, of Conversion Shares to the Company Parent (or its successor) upon reasonable request to assist the Company Parent in making the determination described above. .
(c) The CompanyParent’s obligations to include the Conversion Shares of any applicable Lender in the Conversion Shares Registration Statement are contingent upon the Holder such Lender furnishing in writing to the Company Parent a completed selling stockholder questionnaire in customary form that contains such information regarding Investorsuch Lender, the securities of the Company Parent held by Investor such Lender and the intended method of disposition of the Conversion Shares as shall be reasonably requested by the Company Parent to effect the registration of the Conversion Sharesthereof, and the Holder each applicable Lender shall execute such documents for in connection with such registration as the Company Parent may reasonably request that are customary of a selling stockholder in similar situations, including providing that the Company Parent shall be entitled to postpone and suspend the effectiveness or use of the Conversion Shares Registration Statement (i) during any customary blackout or similar period or as permitted hereunderhereunder and (ii) as may be necessary in connection with the preparation and filing of a post-effective amendment to the Conversion Shares Registration Statement following the filing of the Parent’s Annual Report on Form 10-K for its first completed fiscal year following the effective date of the Conversion Shares Registration Statement; provided that the Parent shall request such information from any such Lender, including the selling stockholder questionnaire, at least five (5) Business Days prior to the anticipated date of filing the Conversion Shares Registration Statement with the Commission. In the case of the registration effected by the Parent pursuant to this Agreement, the Parent shall, upon reasonable request, inform any requesting Lender as to the status of such registration. No Lender shall be entitled to use the Conversion Shares Registration Statement for an underwritten offering of Conversion Shares. Notwithstanding anything to the contrary contained herein, the Parent may delay or postpone filing of such Conversion Shares Registration Statement, and from time to time require any applicable Lender not to sell under the Conversion Shares Registration Statement or suspend the use or effectiveness of any such Conversion Shares Registration Statement if (A) it determines in good faith that in order for the registration statement to not contain a material misstatement or omission, an amendment thereto would be needed, (B) such filing or use would materially affect a bona fide business or financing transaction of the Parent or would require premature disclosure of information that would materially adversely affect the Parent, (C) in the good faith judgment of the majority of the members of the Parent’s Board, such filing or effectiveness or use of such Conversion Shares Registration Statement would be seriously detrimental to the Parent, or (D) the majority of the Board determines to delay the filing or initial effectiveness of, or suspend use of, a Conversion Shares Registration Statement and such delay or suspension arises out of, or is a result of, or is related to or is in connection with guidance from the Commission relating to, initial public offering securities or expenses or future Commission guidance directed at special purpose acquisition companies, or any related disclosure or related matters (each such circumstance, a “Conversion Shares Suspension Event”); provided that (w) the Parent shall not so delay filing or so suspend the use of the Conversion Shares Registration Statement for a period of more than sixty (60) consecutive days or more than one hundred twenty (120) total calendar days, or more than three (3) times in any three hundred sixty (360) day period and (x) the Parent shall use commercially reasonable efforts to make such Conversion Shares Registration Statement available for the sale by each applicable Lender of such securities as soon as practicable thereafter.
(d) Upon receipt of any written notice from the Parent (which notice shall not contain any material non-public information regarding the Parent) of the happening of (i) an issuance by the Commission of any stop order suspending the effectiveness of any Conversion Shares Registration Statement or the initiation of any proceedings for such purpose, which notice shall be given no later than three (3) Business Days from the date of such event, (ii) any Conversion Shares Suspension Event during the period that the Conversion Shares Registration Statement is effective, which notice shall be given no later than three (3) Business Days from the date of such Conversion Shares Suspension Event, or (iii) if as a result of a Conversion Shares Suspension Event the Conversion Shares Registration Statement or related prospectus contains any 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, in light of the circumstances under which they were made (in the case of the prospectus) not misleading, each applicable Lender agrees that (1) it will immediately discontinue offers and sales of the Conversion Shares under the Conversion Shares Registration Statement until such Xxxxxx receives copies of a supplemental or amended prospectus (which the Parent agrees to promptly prepare) that corrects the misstatement(s) or omission(s) referred to above and receives notice that any post-effective amendment has become effective or unless otherwise notified by the Parent that it may resume such offers and sales and (2) it will maintain the confidentiality of any information included in such written notice delivered by the Parent unless otherwise required by law, subpoena or regulatory request or requirement. If so directed by the Parent, any applicable Lender will deliver to the Parent or, in such Lender’s sole discretion destroy, all copies of the prospectus covering the Conversion Shares in its possession; provided that this obligation to deliver or destroy all copies of the prospectus covering the Conversion Shares shall not apply (x) to the extent such Lender is required to retain a copy of such prospectus (A) in order to comply with applicable legal, regulatory, self-regulatory or professional requirements or (B) in accordance with a bona fide pre-existing document retention policy or (y) to copies stored electronically on archival servers as a result of automatic data back-up.
(e) For purposes of this Section 8.23, (i) “Conversion Shares” shall mean, as of any date of determination, the Conversion Shares (as defined herein) and any other equity security issued or issuable with respect to the Conversion Shares by way of share split, dividend, distribution, recapitalization, merger, exchange or replacement, and (ii) “Lender” shall include any Person to which the rights under this Section 8.23 shall have been duly assigned.
Appears in 1 contract
Samples: Credit Agreement and Guaranty (Allurion Technologies, Inc.)
Registration of Conversion Shares. (i) The Company agrees thatUpon receipt of a written request for registration delivered by the Investors holding a majority of the outstanding shares of Series B-2 Stock, no later than the Company, within thirty (30) calendar days after the Conversion Share Delivery Date date designated by the Investors in such written request (provided that such date is no fewer than ninety (90) days after the final Closing under the Purchase Agreement), shall file a registration statement on Form SB-2 or an equally suitable registration statement (the “Filing Date”"Registration Statement") for the purpose of registering all of the Conversion Shares, and certain other shares issued by the Company for resale, and shall use its best efforts to cause such registration statement to be declared effective by the Securities and Exchange Commission (the "SEC") as soon as possible thereafter. If the Registration Statement has not been declared effective by the SEC before the date that is ninety (90) days after the date that the Registration Statement was required to be filed, (the "Effectiveness Deadline"), the Company will file with issue to each of the SEC Investors a warrant to purchase shares of Common Stock in an amount equal to 2% of the number of Conversion Shares then held by such Investor (at the Company’s sole cost and expense) a registration statement registering the resale of including, for this purposes, the Conversion Shares underlying the shares of Series B-2 Stock then held by such Investor) (the “Registration Statement”) and the Company shall use its commercially reasonable efforts to have a "Monthly Penalty Warrant"), as set forth on Exhibit C hereto. If the Registration Statement has not been declared effective as soon as practicable before the date that is thirty (30) days after the filing thereof (and in any event, no later than seventy (70) calendar days following the Conversion Share Delivery Date) (the “Effectiveness Deadline”); , the Company will issue to each Investor an additional Monthly Penalty Warrant, and provided further that the Company will issue an additional Monthly Penalty Warrant to each Investor on the date that is sixty (60) days after the Effectiveness Deadline shall be extended Deadline, and every thirtieth day thereafter, if the Registration Statement is reviewed by, and comments thereto are provided from, the SEC, or the Company encounters other delays associated with third parties, including delays in receiving any applicable reviews or consents has not been declared effective before such monthly anniversary of the Company’s independent public accounting firmEffectiveness Deadline, provided however that the total number of shares issuable pursuant to the Monthly Penalty Warrants issued to an Investor shall not exceed 12% of such Investor's Conversion Shares. The per share exercise price for the shares of Common Stock underlying the Monthly Penalty Warrants shall be $0.05 per share. The Company will use its commercially reasonable best efforts to provide a draft of keep the Registration Statement effective (subject to the Holder for review (but not comment other than with respect to the accuracy of the information concerning the Holder included therein) at least two (2) Business Days in advance of filing the Registration Statement; provided that, for the avoidance of doubt, in no event shall the Company reasonable blackout provisions as may be required in order to delay or postpone comply with the filing of such Registration Statement as a result of or in connection with Investor’s review. In no event shall securities laws) until the undersigned be identified as a statutory underwriter in earlier of: (i) 12 months after the date that the Registration Statement unless requested is declared effective by the SEC; provided, that if the SEC requests that the Holder be identified as a statutory underwriter in the Registration Statement, Investor will have the option, in its sole and absolute discretion, to either (i) have the opportunity to withdraw from the Registration Statement upon its prompt written request to the Company, in which case the Company’s obligation to register the Conversion Shares will be deemed satisfied or (ii) be included as such in the Registration Statement. Notwithstanding the foregoing, if the SEC prevents the Company from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Conversion Shares, such Registration Statement shall register for resale such number of Conversion Shares which is equal to the maximum number of Conversion Shares as is permitted by the SEC.
(ii) The Company agrees that, except for such times as the Company is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, the Company will use commercially reasonable efforts to cause such Registration Statement to remain effective with respect to Investor until the earlier of (i) one (1) year from the issuance of the Conversion Shares, (ii) the date on which when all of the Conversion Shares shall have been Registrable Securities covered by the Registration Statement are sold, ; or (iii) on the first date on which the Holder can sell when Rule 144 is available with respect to all of its Conversion Shares under Rule 144 of the Securities Act without limitation as to the manner of sale or the amount of such securities that may be sold. For as long as the Registration Statement shall remain effective pursuant to the immediately preceding sentence, the Company will use commercially reasonable efforts to file all reports, and provide all customary and reasonable cooperation, necessary to enable the undersigned to resell the Conversion Shares pursuant to the Registration Statement or Rule 144 of the Securities Act, as applicable, qualify the Conversion Shares for listing on the applicable stock exchange on which the Company’s shares of common stock are then listed, and update or amend the Registration Statement as necessary to include the Conversion Shares. For as long as the Holder holds the Conversion Shares, the Company will use commercially reasonable efforts to file all reports, and provide all customary and reasonable cooperation, necessary to enable the undersigned to resell the Conversion Shares pursuant to Rule 144 of the Securities Act. The Holder agrees to disclose its beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, of Conversion Shares to the Company (or its successor) upon request to assist the Company in making the determination described above. The Company’s obligations to include the Conversion Shares in the Registration Statement are contingent upon the Holder furnishing in writing to the Company such information regarding Investor, the securities of the Company held covered by Investor and the intended method of disposition of the Conversion Shares as shall be reasonably requested by the Company to effect the registration of the Conversion Shares, and the Holder shall execute such documents for such registration as the Company may reasonably request that are customary of a selling stockholder in similar situations, including providing that the Company shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement during any customary blackout or similar period or as permitted hereunderStatement.
Appears in 1 contract
Samples: Stockholders Agreement (Warp Technology Holdings Inc)
Registration of Conversion Shares. (i) The Company agrees thatshall, no later than thirty within forty-five (3045) calendar days after the Conversion Share Delivery Date closing (the “"Closing") of the sale of the Notes and the transactions described in the Senior Note Agreement and the Mezz Note Agreement, complete all required audits and make all related filings concerning the acquisition of Gupta Technologies, LLC ("Gupta"). Within fifteen (15) days after the end of the 45-day period referred to in the preceding sentence (the "Filing Date”Deadline"), the Company will shall file with the SEC (at the Company’s sole cost and expense) a registration statement on Form SB-2 or an equally suitable registration statement (the "Registration Statement") for the purpose of registering the resale all of the Conversion Shares (the “Registration Statement”) and the for resale. The Company shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof (and in any event, no later than seventy (70) calendar days following the Conversion Share Delivery Date) (the “Effectiveness Deadline”); provided that the Effectiveness Deadline shall be extended if the Registration Statement is reviewed by, and comments thereto are provided from, the SEC, or the Company encounters other delays associated with third parties, including delays in receiving any applicable reviews or consents of the Company’s independent public accounting firm. The Company will use its commercially reasonable efforts to provide a draft of the Registration Statement to the Holder for review (but not comment other than with respect to the accuracy of the information concerning the Holder included therein) at least two (2) Business Days in advance of filing the Registration Statement; provided that, for the avoidance of doubt, in no event shall the Company be required to delay or postpone the filing of such Registration Statement as a result of or in connection with Investor’s review. In no event shall the undersigned be identified as a statutory underwriter in the Registration Statement unless requested by the SEC; provided, that if the SEC requests that the Holder be identified as a statutory underwriter in the Registration Statement, Investor will have the option, in its sole and absolute discretion, to either (i) have the opportunity to withdraw from the Registration Statement upon its prompt written request to the Company, in which case the Company’s obligation to register the Conversion Shares will be deemed satisfied or (ii) be included as such in the Registration Statement. Notwithstanding the foregoing, if the SEC prevents the Company from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Conversion Shares, such Registration Statement shall register for resale such number of Conversion Shares which is equal to the maximum number of Conversion Shares as is permitted by the SEC.
(ii) The Company agrees that, except for such times as the Company is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, the Company will use commercially reasonable best efforts to cause such Registration Statement to remain be declared effective with respect to Investor until by the earlier of Securities and Exchange Commission (the "SEC") at the earliest practicable date thereafter. If (i) one (1) year from the issuance of Registration Statement has not been filed with the Conversion Shares, SEC by the Filing Deadline or (ii) the Registration Statement has not been declared effective by the SEC before the date on which all that is ninety (90) days after the Filing Deadline or, in the event of a review of the Conversion Shares shall have been soldRegistration Statement by the SEC, one hundred and twenty (120) days after the Filing Deadline (the "Effectiveness Deadline") or (iii) on the first date on which the Holder can sell all of its Conversion Shares under Rule 144 of the Securities Act without limitation as to the manner of sale or the amount of such securities that may be sold. For as long as after the Registration Statement shall remain effective pursuant is declared effective, the Registration Statement or related prospectus ceases for any reason to be available to the immediately preceding sentence, the Company will use commercially reasonable efforts Investors as to file all reports, and provide all customary and reasonable cooperation, necessary to enable the undersigned to resell the Conversion Shares pursuant the offer and sale of which it is required to cover at any time prior to the expiration of the Effectiveness Period (as defined below) (whether due to the Registration Statement ceasing for any reason to be effective or Rule 144 of the Securities Act, as applicable, qualify the Conversion Shares for listing on the applicable stock exchange on which the Company’s shares of common stock are then listed, and update or amend the Registration Statement as necessary to include the Conversion Shares. For as long as the Holder holds the Conversion Shares, the Company will use commercially reasonable efforts to file all reports, and provide all customary and reasonable cooperation, necessary to enable the undersigned to resell the Conversion Shares pursuant to Rule 144 of the Securities Act. The Holder agrees to disclose its beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, of Conversion Shares to the Company (or its successor) upon request to assist the Company in making the determination described above. The Company’s obligations to include the Conversion Shares in the Registration Statement are contingent upon the Holder furnishing in writing to the Company such information regarding Investor, the securities of the Company held by Investor and the intended method of disposition of the Conversion Shares as shall be reasonably requested by the Company to effect the registration of the Conversion Shares, and the Holder shall execute such documents for such registration as the Company may reasonably request that are customary of a selling stockholder in similar situations, including providing that the Company shall be entitled to postpone and suspend the effectiveness or because use of the Registration Statement during prospectus has been suspended for any customary blackout or similar period or as permitted hereunder.reason, including, without limitation, pursuant to Section 3(j) hereof) for an aggregate of more than twenty
Appears in 1 contract
Samples: Investors' Agreement (Warp Technology Holdings Inc)
