Registration of Warrant Shares. (a) If (but without any obligation to do so) the Company proposes to register (including for this purpose a registration effected by the Company for stockholders other than the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), the Company shall, at such time, promptly give each Holder written notice of such proposed registration. Upon the written request of each Holder given within twenty (20) days after mailing of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions of Section 8(c), endeavor to cause to be registered under the Act all of the Warrant Shares that each such Holder has requested to be registered. (b) Whenever required under this Section 8(a) to effect the registration of any Warrant Shares, the Company shall, as expeditiously as reasonably possible use reasonable efforts to (i) file a registration statement (the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective under the Securities Act of 1933, as amended (the "Act") as soon thereafter as reasonably practicable. The Company promptly shall provide each Holder with such copies of the final prospectus contained in the Registration Statement after it becomes effective as they shall reasonably request. In addition, the Company shall (a) use reasonable efforts to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filed. (c) Notwithstanding anything contained herein to the contrary, the Company shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delay. (d) Each Holder shall (i) reasonably cooperate with the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereof. (e) The Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectus. (f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders).
Appears in 5 contracts
Samples: Warrant Agreement (Clacendix, Inc.), Warrant Agreement (Clacendix, Inc.), Warrant Agreement (Ion Networks Inc)
Registration of Warrant Shares. (a) If (but without any obligation to do so) the Company proposes to register (including for this purpose a registration effected by the Company for stockholders other than the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), the Company The Issuer shall, at such timethe Issuer's expense, promptly give each Holder written notice of such proposed registration. Upon the written request of each Holder given within twenty (20) days after mailing of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions of Section 8(c), endeavor to cause to be registered register under the Securities Act all of the Warrant Shares and in that each such Holder has requested to be registered.
(b) Whenever required under this Section 8(a) to effect the registration of any Warrant Shares, the Company shall, as expeditiously as reasonably possible use reasonable efforts to (i) connection shall file a registration statement with respect to the Warrant Shares (the "Registration Statement")) with the Commission (i) by no later than the date on which the registration statement with respect to the shares of Common Stock offered in the Rights Offering is filed, registering for resale if the Warrant Shares Issuer consummates a Rights Offering prior to September 1, 2001, and (ii) by no later than November 1, 2001 if the Issuer does not consummate a Rights Offering prior to September 1, 2001 (in each case, the "Filing Date"). The Issuer shall use its commercially reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act of 1933, as amended (promptly as possible after the "Act") as soon thereafter as reasonably practicablefiling thereof. The Company promptly shall provide each Holder with such copies number of the final prospectus contained shares of Common Stock included in the Registration Statement after it becomes effective as they shall reasonably request. In addition, the Company shall (a) use reasonable efforts to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when at all such Warrant Shares can times be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filed.
(c) Notwithstanding anything contained herein at least equal to the contrary, the Company shall be entitled to postpone the filing number of Warrant Shares. Notice of effectiveness of the Registration Statement otherwise required to shall be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder furnished promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required Warrant Holder. The Issuer shall use its commercially reasonable best efforts to prepare maintain the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delay.
(d) Each Holder shall (i) reasonably cooperate with the Company in connection with the preparation and filing effectiveness of the Registration Statement and execute and deliver any agreements from time to time will amend or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the supplement such Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereof.
(e) The Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated contained therein from as and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, except to the extent such Loss is necessary to comply with the direct result of a misstatement or omission for which such Holder Indemnitee is liable Securities Act to permit the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale resale of the Warrant Shares by such Holder Indemnitee the Warrant Holder. The Issuer shall use its commercially reasonable best efforts to any person if a copy maintain the effectiveness of the definitive prospectus shall not Registration Statement with respect to the Warrant Shares until all of the Warrant Shares have been delivered or sent to such person within the time required sold by the Act and Warrant Holder pursuant thereto or such date as all of the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectusWarrant Shares may be sold by Warrant Holder without registration.
(fb) In connection with any offering involving an underwriting of shares As a condition to the inclusion of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in the Registration Statement, the Warrant Holder shall furnish to the Issuer such underwriting unless they accept information with respect to the terms Warrant Holder as is required to be disclosed in the Registration Statement (and the prospectus included therein) by the applicable rules, regulations and guidelines of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders)Commission.
Appears in 3 contracts
Samples: Warrant Agreement (Chromatics Color Sciences International Inc), Warrant Agreement (Chromatics Color Sciences International Inc), Share Subscription & Redemption Agreement (Chromatics Color Sciences International Inc)
Registration of Warrant Shares. (a) If (but without If, at any obligation time prior to do so) the Company proposes to register (including for this purpose a registration effected by close of business on the Company for stockholders other than [fifth][tenth] anniversary of the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a Effective Date, there is no registration statement relating either to in effect for the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction)Warrant Shares, the Company shallCompany, at such time, promptly give each Holder written notice of such proposed registration. Upon upon the written request of each Holder given within twenty (20) days after mailing holders of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions Warrants and of Section 8(c), endeavor to cause to be registered under the Act all Warrant Shares representing an aggregate of 51% or more of the Warrant Shares, will file with the Securities and Exchange Commission under the Securities Act, such registration statements and amendments thereto and such other filings as may be required to permit the public offering and sale of such Warrant Shares that each such Holder has requested in compliance with the Securities Act. The Company shall be required to be registeredregister Warrant Shares no more than once pursuant to this Section 5.01(a).
(b) Whenever required under The Company will permit, subject to the last sentence of this Section 8(a) 5.01(b), any Warrant Shares to effect be included, at the registration request of any the holders of such Warrant Shares, in any registration of securities of the Company shall, as expeditiously as reasonably possible use reasonable efforts to (iother than shares of Common Stock for an employees' option or stock purchase plan or shares registered on Form S-4 in connection with an arms-length merger transaction) file under a registration statement (filed by the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective Company under the Securities Act at any time prior to the close of 1933, as amended (business on the "Act") as soon thereafter as reasonably practicable[ ] anniversary of the Effective Date. The Company promptly shall provide written notice to the record holders of all Warrants and Warrant Shares at least 30 days prior to the filing of any such registration statement sent by registered mail to the address of record of each Holder with such copies holder. If the offering pursuant to any registration statement described in this Section 5.01(b) is made through underwriters and the managing underwriter of such offering shall advise the Company in writing that, in its opinion, the distribution of the final prospectus contained number of Warrant Shares requested to be included in the Registration Statement after it becomes effective as they shall reasonably request. In addition, registration concurrently with the securities being registered by the Company would materially and adversely affect the distribution of such securities by the Company, then all selling security holders (but not the Company) shall (a) use reasonable efforts reduce the amount of securities each intended to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all distribute through such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") offering on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filedpro rata basis.
(c) Notwithstanding anything contained herein Each such holder shall pay the underwriting discount attributable to such holder's Warrant Shares, any transfer tax payable with respect thereto and the contraryfees and expenses of such holder's counsel. All other expenses of registration under Section 5.01(a), the Company or Section 5.01(b) shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided borne by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous DelayCompany.
(d) Each Holder shall (i) reasonably cooperate The Company will agree to indemnify the holders of Warrant Shares that are included in a registration statement or amendments to existing registration statements pursuant to this Section 5.01 substantially to the same extent as the Company has agreed to indemnify the Underwriters in the Underwriting Agreement and such holders will agree to indemnify the Company and any underwriter with respect to information furnished by them in writing to the Company for inclusion therein substantially to the same extent as the Underwriters have indemnified the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereofUnderwriting Agreement.
(e) The If the offering pursuant to any registration statement provided for herein is made through underwriters, the Company shall indemnify will enter into an underwriting agreement in customary form and hold harmless indemnify, in customary form, such underwriters and each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each person who controls any such underwriter within the meaning of the foregoingSecurities Act. Such underwriting agreement shall contain provisions for the indemnification of the Company in customary form, a "Holder Indemnitee") who is or provided that the aggregate amount that may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising recovered from any actual or alleged misrepresentation or misstatement of facts or omission such underwriter pursuant to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or such provisions shall be limited to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred total price at which the Warrant Shares purchased by any such Holder Indemnitee in connection with underwriter under such claim, action, suit or proceeding or the defense thereof, except underwriting agreement were offered to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectuspublic.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders).
Appears in 2 contracts
Samples: Warrant Agreement (Ribozyme Pharmaceuticals Inc), Warrant Agreement (Ametek Inc/)
Registration of Warrant Shares. (a) If (but without If, at any obligation time prior to do so) the Company proposes to register (including for this purpose a registration effected by close of business on the Company for stockholders other than [ ] anniversary of the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a Effective Date, there is no registration statement relating either to in effect for the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction)Warrant Shares, the Company shallCompany, at such time, promptly give each Holder written notice of such proposed registration. Upon upon the written request of each Holder given within twenty (20) days after mailing holders of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions Warrants and of Section 8(c), endeavor to cause to be registered under the Act all Warrant Shares representing an aggregate of 50% or more of the Warrant Shares, will file with the Securities and Exchange Commission under the Securities Act, such registration statements and amendments thereto and such other filings as may be required to permit the public offering and sale of such Warrant Shares that each such Holder has requested in compliance with the Securities Act. The Company shall be required to be registeredregister Warrant Shares no more than once pursuant to this Section 5.01(a).
(b) Whenever required under The Company will permit, subject to the last sentence of this Section 8(a) 5.01(b), any Warrant Shares to effect be included, at the registration request of any the holders of such Warrant Shares, in any registration of securities of the Company shall, as expeditiously as reasonably possible use reasonable efforts to (iother than shares of Common Stock for an employees' option or stock purchase plan or shares registered on Form S-4 in connection with an arms-length merger transaction) file under a registration statement (filed by the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective Company under the Securities Act at any time prior to the close of 1933, as amended (business on the "Act") as soon thereafter as reasonably practicable[ ] anniversary of the Effective Date. The Company promptly shall provide written notice to the record holders of all Warrants and Warrant Shares at least 30 days prior to the filing of any such registration statement sent by registered mail to the address of record of each Holder with such copies holder. If the offering pursuant to any registration statement described in this Section 5.01(b) is made through underwriters and the managing underwriter of such offering shall advise the Company in writing that, in its opinion, the distribution of the final prospectus contained number of Warrant Shares requested to be included in the Registration Statement after it becomes effective as they shall reasonably request. In addition, registration concurrently with the securities being registered by the Company would materially and adversely affect the distribution of such securities by the Company, then all selling security holders (but not the Company) shall (a) use reasonable efforts reduce the amount of securities each intended to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all distribute through such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") offering on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filedpro rata basis.
(c) Notwithstanding anything contained herein Each such holder shall pay the underwriting discount attributable to such holder's Warrant Shares, any transfer tax payable with respect thereto and the contraryfees and expenses of such holder's counsel. All other expenses of registration under Section 5.01(a), the Company or Section 5.01(b) shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided borne by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous DelayCompany.
(d) Each Holder shall (i) reasonably cooperate The Company will agree to indemnify the holders of Warrant Shares that are included in a registration statement or amendments to existing registration statements pursuant to this Section 5.01 substantially to the same extent as the Company has agreed to indemnify the Underwriters in the Underwriting Agreement and such holders will agree to indemnify the Company and any underwriter with respect to information furnished by them in writing to the Company for inclusion therein substantially to the same extent as the Underwriters have indemnified the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereofUnderwriting Agreement.
(e) The If the offering pursuant to any registration statement provided for herein is made through underwriters, the Company shall indemnify will enter into an underwriting agreement in customary form and hold harmless indemnify, in customary form, such underwriters and each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each person who controls any such underwriter within the meaning of the foregoingSecurities Act. Such underwriting agreement shall contain provisions for the indemnification of the Company in customary form, a "Holder Indemnitee") who is or provided that the aggregate amount that may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising recovered from any actual or alleged misrepresentation or misstatement of facts or omission such underwriter pursuant to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or such provisions shall be limited to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred total price at which the Warrant Shares purchased by any such Holder Indemnitee in connection with underwriter under such claim, action, suit or proceeding or the defense thereof, except underwriting agreement were offered to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectuspublic.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders).
Appears in 2 contracts
Samples: Warrant Agreement (American Home Mortgage Holdings Inc), Warrant Agreement (American Home Mortgage Holdings Inc)
Registration of Warrant Shares. (a) If (but without If, at any obligation time prior to do so) the Company proposes to register (including for this purpose a registration effected by close of business on the Company for stockholders other than [ ] anniversary of the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a Effective Date, there is no registration statement relating either to in effect for the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction)Warrant Shares, the Company shallCompany, at such time, promptly give each Holder written notice of such proposed registration. Upon upon the written request of each Holder given within twenty (20) days after mailing holders of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions Warrants and of Section 8(c), endeavor to cause to be registered under the Act all Warrant Shares representing an aggregate of 50% or more of the Warrant Shares, will file with the Securities and Exchange Commission under the Securities Act, such registration statements and amendments thereto and such other filings as may be required to permit the public offering and sale of such Warrant Shares that each such Holder has requested in compliance with the Securities Act. The Company shall be required to be registeredregister Warrant Shares no more than once pursuant to this Section 5.01(a).
(b) Whenever required under The Company will permit, subject to the last sentence of this Section 8(a) 5.01(b), any Warrant Shares to effect be included, at the registration request of any the holders of such Warrant Shares, in any registration of securities of the Company shall, as expeditiously as reasonably possible use reasonable efforts to (iother than shares of Preferred Stock for an employees' option or stock purchase plan or shares registered on Form S-4 in connection with an arms-length merger transaction) file under a registration statement (filed by the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective Company under the Securities Act at any time prior to the close of 1933, as amended (business on the "Act") as soon thereafter as reasonably practicable[ ] anniversary of the Effective Date. The Company promptly shall provide written notice to the record holders of all Warrants and Warrant Shares at least 30 days prior to the filing of any such registration statement sent by registered mail to the address of record of each Holder with such copies holder. If the offering pursuant to any registration statement described in this Section 5.01(b) is made through underwriters and the managing underwriter of such offering shall advise the Company in writing that, in its opinion, the distribution of the final prospectus contained number of Warrant Shares requested to be included in the Registration Statement after it becomes effective as they shall reasonably request. In addition, registration concurrently with the securities being registered by the Company would materially and adversely affect the distribution of such securities by the Company, then all selling security holders (but not the Company) shall (a) use reasonable efforts reduce the amount of securities each intended to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all distribute through such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") offering on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filedpro rata basis.
(c) Notwithstanding anything contained herein Each such holder shall pay the underwriting discount attributable to such holder's Warrant Shares, any transfer tax payable with respect thereto and the contraryfees and expenses of such holder's counsel. All other expenses of registration under Section 5.01(a), the Company or Section 5.01(b) shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided borne by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous DelayCompany.
(d) Each Holder shall (i) reasonably cooperate The Company will agree to indemnify the holders of Warrant Shares that are included in a registration statement or amendments to existing registration statements pursuant to this Section 5.01 substantially to the same extent as the Company has agreed to indemnify the Underwriters in the Underwriting Agreement and such holders will agree to indemnify the Company and any underwriter with respect to information furnished by them in writing to the Company for inclusion therein substantially to the same extent as the Underwriters have indemnified the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereofUnderwriting Agreement.
(e) The If the offering pursuant to any registration statement provided for herein is made through underwriters, the Company shall indemnify will enter into an underwriting agreement in customary form and hold harmless indemnify, in customary form, such underwriters and each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each person who controls any such underwriter within the meaning of the foregoingSecurities Act. Such underwriting agreement shall contain provisions for the indemnification of the Company in customary form, a "Holder Indemnitee") who is or provided that the aggregate amount that may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising recovered from any actual or alleged misrepresentation or misstatement of facts or omission such underwriter pursuant to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or such provisions shall be limited to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred total price at which the Warrant Shares purchased by any such Holder Indemnitee in connection with underwriter under such claim, action, suit or proceeding or the defense thereof, except underwriting agreement were offered to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectuspublic.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders).
Appears in 2 contracts
Samples: Warrant Agreement (American Home Mortgage Holdings Inc), Warrant Agreement (American Home Mortgage Investment Corp)
Registration of Warrant Shares. (a) If (but without If, at any obligation time prior to do so) the Company proposes to register (including for this purpose a registration effected by close of business on the Company for stockholders other than [fifth][tenth] anniversary of the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a Effective Date, there is no registration statement relating either to in effect for the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction)Warrant Shares, the Company shallCompany, at such time, promptly give each Holder written notice of such proposed registration. Upon upon the written request of each Holder given within twenty (20) days after mailing holders of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions Warrants and of Section 8(c), endeavor to cause to be registered under the Act all Warrant Shares representing an aggregate of 51% or more of the Warrant Shares, will file with the Securities and Exchange Commission under the Securities Act, such registration statements and amendments thereto and such other filings as may be required to permit the public offering and sale of such Warrant Shares that each such Holder has requested in compliance with the Securities Act. The Company shall be required to be registeredregister Warrant Shares no more than once pursuant to this Section 5.01(a).
(b) Whenever required under The Company will permit, subject to the last sentence of this Section 8(a) 5.01(b), any Warrant Shares to effect be included, at the registration request of any the holders of such Warrant Shares, in any registration of securities of the Company shall, as expeditiously as reasonably possible use reasonable efforts to (iother than shares of Preferred Stock for an employees' option or stock purchase plan or shares registered on Form S-4 in connection with an arms-length merger transaction) file under a registration statement (filed by the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective Company under the Securities Act at any time prior to the close of 1933, as amended (business on the "Act") as soon thereafter as reasonably practicable[ ] anniversary of the Effective Date. The Company promptly shall provide written notice to the record holders of all Warrants and Warrant Shares at least 30 days prior to the filing of any such registration statement sent by registered mail to the address of record of each Holder with such copies holder. If the offering pursuant to any registration statement described in this Section 5.01(b) is made through underwriters and the managing underwriter of such offering shall advise the Company in writing that, in its opinion, the distribution of the final prospectus contained number of Warrant Shares requested to be included in the Registration Statement after it becomes effective as they shall reasonably request. In addition, registration concurrently with the securities being registered by the Company would materially and adversely affect the distribution of such securities by the Company, then all selling security holders (but not the Company) shall (a) use reasonable efforts reduce the amount of securities each intended to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all distribute through such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") offering on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filedpro rata basis.
(c) Notwithstanding anything contained herein Each such holder shall pay the underwriting discount attributable to such holder's Warrant Shares, any transfer tax payable with respect thereto and the contraryfees and expenses of such holder's counsel. All other expenses of registration under Section 5.01(a), the Company or Section 5.01(b) shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided borne by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous DelayCompany.
(d) Each Holder shall (i) reasonably cooperate The Company will agree to indemnify the holders of Warrant Shares that are included in a registration statement or amendments to existing registration statements pursuant to this Section 5.01 substantially to the same extent as the Company has agreed to indemnify the Underwriters in the Underwriting Agreement and such holders will agree to indemnify the Company and any underwriter with respect to information furnished by them in writing to the Company for inclusion therein substantially to the same extent as the Underwriters have indemnified the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereofUnderwriting Agreement.
(e) The If the offering pursuant to any registration statement provided for herein is made through underwriters, the Company shall indemnify will enter into an underwriting agreement in customary form and hold harmless indemnify, in customary form, such underwriters and each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each person who controls any such underwriter within the meaning of the foregoingSecurities Act. Such underwriting agreement shall contain provisions for the indemnification of the Company in customary form, a "Holder Indemnitee") who is or provided that the aggregate amount that may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising recovered from any actual or alleged misrepresentation or misstatement of facts or omission such underwriter pursuant to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or such provisions shall be limited to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred total price at which the Warrant Shares purchased by any such Holder Indemnitee in connection with underwriter under such claim, action, suit or proceeding or the defense thereof, except underwriting agreement were offered to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectuspublic.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders).
Appears in 2 contracts
Samples: Warrant Agreement (Ametek Inc/), Warrant Agreement (Ribozyme Pharmaceuticals Inc)
Registration of Warrant Shares. (ai) If No later than sixty (but without any obligation to do so60) days after the Issue Date, the Company proposes shall prepare and file with the Commission one registration statement on Form S-3 (or, if the Company is not then eligible to use Form S-3 to register the resale of the Warrant Shares, on such form of registration statement as is then available to effect a registration therefor) (the “Registration Statement”) covering the resale of the Warrant Shares. The Holder shall not be named as an “underwriter” in the Registration Statement without the Holder’s prior written consent. Such Registration Statement also shall cover, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Warrant Shares. Such Registration Statement shall not include any shares of Common Stock or other securities for this purpose a registration effected by the Company for stockholders account of any holder other than the HoldersHolder without the prior written consent of the Holder; provided that the Registration Statement may include securities to be registered pursuant to (i) any that certain Registration Rights Agreement, dated as of June 24, 2018, among the Company, Aquestive Partners, LLC, and the other parties named therein (as such agreement is in effect on the date hereof) (the “Xxxxxxx RRA”), and (ii) the shares of Common Stock issued or issuable upon exercise of the other warrants dated the date hereof, each by and between the Company and each other holder party thereto. The Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to the Holder and its stock counsel prior to its filing or other securities under submission.
(ii) The Company shall use reasonable best efforts to have the Act Registration Statement declared effective within ninety (90) days after the Issue Date. The Company shall notify the Holder by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after the Registration Statement is declared effective, and shall simultaneously provide the Holder with a number of copies of any related prospectus reasonably requested to be used in connection with the public offering of such securities solely for cash (sale or other than a registration statement relating either to the sale of securities to employees disposition of the Company pursuant to a stock optionsecurities covered thereby.
(iii) For not more than thirty (30) consecutive days, stock purchase or similar plan or a SEC Rule 145 transaction)and for not more than an aggregate of sixty (60) days in any twelve (12) month period, the Company shall, at such time, promptly give each Holder written notice of such proposed registration. Upon may suspend the written request of each Holder given within twenty (20) days after mailing of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions of Section 8(c), endeavor to cause to be registered under the Act all of the Warrant Shares that each such Holder has requested to be registered.
(b) Whenever required under this Section 8(a) to effect the registration use of any Warrant Shares, the Company shall, as expeditiously as reasonably possible use reasonable efforts to (i) file a registration statement (the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective under the Securities Act of 1933, as amended (the "Act") as soon thereafter as reasonably practicable. The Company promptly shall provide each Holder with such copies of the final prospectus contained included in the Registration Statement after it becomes effective as they shall reasonably request. In additioncontemplated by this Section in the event that the Company determines in good faith that such suspension is necessary (A) to delay the disclosure of material non-public information concerning the Company, the Company shall (a) use reasonable efforts to keep disclosure of which at the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filed.
(c) Notwithstanding anything contained herein to the contrary, the Company shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) ortime would be, in the event good faith opinion of the Company, materially detrimental to the Company, or (B) to amend or supplement the affected Registration Statement has been declared effective, without suspending or the related prospectus so that such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has prospectus shall not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delay.
(d) Each Holder shall (i) reasonably cooperate with the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes include an untrue statement of a material fact or omits omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingtherein, in the case of the prospectus in light of the circumstances under which they were made made, not misleading (as determined by an “Allowed Delay”); provided that the Company or its counsel shall promptly (x) notify the Holder in its sole discretion)writing of the commencement of and the reasons for an Allowed Delay, forthwith discontinue its disposition but shall not (without the prior written consent of Warrant Shares pursuant the Holder) disclose to the Holder any material non-public information giving rise to an Allowed Delay; (y) advise the Holder in writing (including via e-mail) to cease all sales under the Registration Statement, Statement until such time as such Holder the end of the Allowed Delay; and (or any holdersz) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its commercially reasonable best efforts to prepare any necessary amendments or supplements to the Registration Statement terminate an Allowed Delay as soon promptly as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereofpracticable.
(e) The Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectus.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders).
Appears in 2 contracts
Samples: Common Stock Purchase Warrant (Aquestive Therapeutics, Inc.), Common Stock Purchase Warrant (Aquestive Therapeutics, Inc.)
Registration of Warrant Shares. (a) If (but without any obligation to do so) The Company shall cause the Company proposes to register (including for this purpose a registration effected by the Company for stockholders other than the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), the Company shall, at such time, promptly give each Holder written notice of such proposed registration. Upon the written request of each Holder given within twenty (20) days after mailing of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions of Section 8(c), endeavor to cause Warrant Shares to be registered under the Act all of the Warrant Shares that each such Holder has requested to be registered.
(b) Whenever required under this Section 8(a) to effect the registration of any Warrant Shares, the Company shall, as expeditiously as reasonably possible use reasonable efforts to (i) file a registration statement (the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective under the Securities Act of 1933, as amended (the "“Securities Act"”) on the first anniversary of the effective date (the “Effective Date”) of the registration statement (No. 333-108671) filed by the Company on Form S-11 under the Securities Act of 1933 and will use its best efforts to keep such registration effective through the close of business on the fifth anniversary of the Effective Date.
(b) If, at any time prior to the close of business on the fifth anniversary of the Effective Date, there is no registration statement in effect for the Warrant Shares, the Company, upon the written request of the holders of the Warrants and of Warrant Shares representing an aggregate of 50% or more of the Warrant Shares, will file with the Securities and Exchange Commission under the Securities Act, such registration statements and amendments thereto and such other filings as soon thereafter as reasonably practicablemay be required to permit the public offering and sale of such Warrant Shares in compliance with the Securities Act. The Company promptly shall provide each Holder with such copies of the final prospectus contained in the Registration Statement after it becomes effective as they shall reasonably request. In addition, the Company shall (a) use reasonable efforts be required to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all such register Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required no more than once pursuant to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filedthis Section 5.02(b).
(c) Notwithstanding anything contained herein to the contrary, the Company Each holder of Warrants shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or pay any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, transfer tax payable with respect to such Holder's holder’s Warrant Shares being sold and the fees and expenses of such holder’s counsel. All other expenses of registration under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to Section 5.02(a) or Section 5.02(b) shall be provided borne by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous DelayCompany.
(d) Each Holder shall (i) reasonably cooperate The Company will agree to indemnify the holders of Warrant Shares that are included in a registration statement or amendments to existing registration statements pursuant to this Section 5.02 substantially to the same extent as the Company has agreed to indemnify the Underwriters in the Underwriting Agreement and such holders will agree to indemnify the Company and any Underwriter with respect to information furnished by them in writing to the Company for inclusion therein substantially to the same extent as the Underwriters have indemnified the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereofUnderwriting Agreement.
(e) The Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectus.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders).
Appears in 2 contracts
Samples: Warrant Agreement (Highland Hospitality Corp), Warrant Agreement (Highland Hospitality Corp)
Registration of Warrant Shares. (a) If (but without If, at any obligation time prior to do so) the Company proposes to register (including for this purpose a registration effected by close of business on the Company for stockholders other than [fifth][tenth] anniversary of the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a Effective Date, there is no registration statement relating either to in effect for the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction)Warrant Shares, the Company shallCompany, at such time, promptly give each Holder written notice of such proposed registration. Upon upon the written request of each Holder given within twenty (20) days after mailing holders of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions Warrants and of Section 8(c), endeavor to cause to be registered under the Act all Warrant Shares representing an aggregate of 51% or more of the Warrant Shares, will file with the Securities and Exchange Commission under the Securities Act, such registration statements and amendments thereto and such other filings as may be required to permit the public offering and sale of such Warrant Shares that each such Holder has requested in compliance with the Securities Act. The Company shall be required to be registeredregister Warrant Shares no more than once pursuant to this Section 5.01(a).
(b) Whenever required under The Company will permit, subject to the last sentence of this Section 8(a) 5.01(b), any Warrant Shares to effect be included, at the registration request of any the holders of such Warrant Shares, in any registration of securities of the Company shall, as expeditiously as reasonably possible use reasonable efforts to (iother than shares of Common Stock for an employees’ option or stock purchase plan or shares registered on Form S-4 in connection with an arms-length merger transaction) file under a registration statement (filed by the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective Company under the Securities Act at any time prior to the close of 1933, as amended (business on the "Act") as soon thereafter as reasonably practicable[ ] anniversary of the Effective Date. The Company promptly shall provide written notice to the registered holders of all Warrants and Warrant Shares at least 30 days prior to the filing of any such registration statement sent by registered mail to the address of record of each Holder with such copies holder. If the offering pursuant to any registration statement described in this Section 5.01(b) is made through underwriters and the managing underwriter of such offering shall advise the Company in writing that, in its opinion, the distribution of the final prospectus contained number of Warrant Shares requested to be included in the Registration Statement after it becomes effective as they shall reasonably request. In addition, registration concurrently with the securities being registered by the Company would materially and adversely affect the distribution of such securities by the Company, then all selling security holders (but not the Company) shall (a) use reasonable efforts reduce the amount of securities each intended to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all distribute through such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") offering on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filedpro rata basis.
(c) Notwithstanding anything contained herein Each such holder shall pay the underwriting discount attributable to such holder’s Warrant Shares, any transfer tax payable with respect thereto and the fees and expenses of such holder’s counsel. All other expenses of registration under Section 5.01(a), or Section 5.01(b) shall be borne by the Company.
(d) The Company will agree to indemnify the holders of Warrant Shares that are included in a registration statement or amendments to existing registration statements pursuant to this Section 5.01 substantially to the contrarysame extent as the Company has agreed to indemnify the Underwriters in the Underwriting Agreement and such holders will agree to indemnify the Company and any underwriter with respect to information furnished by them in writing to the Company for inclusion therein substantially to the same extent as the Underwriters have indemnified the Company in the Underwriting Agreement.
(e) If the offering pursuant to any registration statement provided for herein is made through underwriters, the Company will enter into an underwriting agreement in customary form and indemnify, in customary form, such underwriters and each person who controls any such underwriter within the meaning of the Securities Act. Such underwriting agreement shall contain provisions for the indemnification of the Company in customary form, provided that the aggregate amount that may be recovered from any such underwriter pursuant to such provisions shall be limited to the total price at which the Warrant Shares purchased by any such underwriter under such underwriting agreement were offered to the public.
(f) During any consecutive 365-day period, the Company shall be entitled to postpone suspend the filing availability of any registration statement applicable to the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for nonup to two 45 consecutive-disclosure continues, day periods if the Company would be required to disclose in the Registration Statement the existence Board of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests Directors of the Company not to disclose at determines in the exercise of its reasonable judgment that there is a valid business purpose for such time, suspension and unless and until each Holder furnishes provides notice to the Company in writing information Warrantholders that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delay.
(d) Each Holder shall (i) reasonably cooperate with the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereof.
(e) The Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i)determination was made; provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus no event shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectus.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include disclose the business purpose for such suspension if the Company determines in good faith that such business purpose must remain confidential. There can be no assurance and the offering only Company provides no such assurance that number of such securitiesit will be able to file, including Warrant Sharescause to be declared effective, which the underwriters determine in their sole discretion will not jeopardize the success or keep a registration statement continuously effective, until all of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder Warrants have been exercised or in such other proportions as shall mutually be agreed to by such selling stockholders)have expired.
Appears in 1 contract
Registration of Warrant Shares. (a) If (but without any obligation to do so) the Company proposes to register (including for this purpose a registration effected by the Company for stockholders other than the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), the Company shall, at such time, promptly give each Holder written notice of such proposed registration. Upon the written request of each Holder given within twenty (20) days after mailing of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions of Section 8(c), endeavor to cause to be registered under the Act all of the Warrant Shares that each such Holder has requested to be registered.
(b) Whenever required under this Section 8(a) to effect the registration of any Warrant Shares, the Company shall, as expeditiously as reasonably possible use reasonable efforts to (i) file a registration statement (the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective under the Securities Act of 1933, as amended (the "Act") as soon thereafter as reasonably practicable. The Company promptly shall provide each Holder with such copies of the final prospectus contained in the Registration Statement after it becomes effective as they shall reasonably request. In addition, the Company shall (a) use reasonable efforts to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filed.
(c) Notwithstanding anything contained herein to the contrary, the Company shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delay.
(d) Each Holder shall (i) reasonably cooperate with the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereof.
(e) The Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectus.
(f) In connection with any offering involving an underwriting of shares of the Company’s 's capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ ' Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders).
Appears in 1 contract
Samples: Warrant Agreement (Ion Networks Inc)
Registration of Warrant Shares. (a) If (but without any obligation to do so) The Company shall cause the Company proposes to register (including for this purpose a registration effected by the Company for stockholders other than the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), the Company shall, at such time, promptly give each Holder written notice of such proposed registration. Upon the written request of each Holder given within twenty (20) days after mailing of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions of Section 8(c), endeavor to cause Warrant Shares to be registered under the Securities Act all on the date that they are issuable to FBR pursuant to the Underwriting Agreement and will use its best efforts to keep such registration effective through the close of business on the fifth anniversary of the Warrant Shares that each Effective Date. Thereafter, the Company will use its best efforts to keep such Holder has requested to be registeredregistration effective through the close of business on the seventh anniversary of the Effective Date.
(b) Whenever required under this Section 8(a) If, at any time prior to the close of business on the fifth anniversary of the Effective Date, there is no registration statement in effect for the registration of any Warrant Shares, the Company shallCompany, as expeditiously as reasonably possible use reasonable efforts to (i) file a registration statement (upon the "Registration Statement"), registering for resale written request of holders of Warrants and of Warrant Shares representing an aggregate of 50% or more of the Warrant Shares Shares, will file with the Securities and (ii) cause the Registration Statement to be declared effective Exchange Commission under the Securities Act Act, such registration statements and amendments thereto and such other filings as may be required to permit the public offering and sale of 1933, as amended (such Warrant Shares in compliance with the "Securities Act") as soon thereafter as reasonably practicable. The Company promptly shall provide each Holder with such copies of the final prospectus contained in the Registration Statement after it becomes effective as they shall reasonably request. In addition, the Company shall (a) use reasonable efforts be required to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all such register Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required only once pursuant to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filedthis Section 6.02(b).
(c) Notwithstanding anything contained herein The Company will permit any Warrant Shares to be included, at the request of the holders of such Warrant Shares, in any registration of securities of the Company (other than shares of Common Stock for an employees' option or stock purchase plan) under a registration statement filed by the Company under the Securities Act at any time prior to the contrary, close of business on the seventh anniversary of the Effective Date. The Company shall be entitled provide written notice to postpone the record holders of all Warrants and Warrant Shares at least 30 days prior to the filing of the Registration Statement otherwise required to be prepared and filed any such registration statement sent by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes registered mail to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 address of Regulation S-B promulgated under the Act, with respect to record of each such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delayholder.
(d) Each Holder such holder shall (ipay the underwriting discount attributable to such holder's Warrant Shares, any transfer tax payable with respect thereto and the fees and expenses of such holder's counsel. All other expenses of registration under Section 6.02(a), Section 6.02(b) reasonably cooperate with the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested Section 6.02(c) shall be borne by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereofCompany.
(e) The Company shall will agree to indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each the holders of Warrant Shares that are included in a registration statement or amendments to existing registration statements pursuant to this Section 6.02 substantially to the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened same extent as the Company has agreed to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make indemnify the facts stated under the circumstances not materially misleading, Underwriters in the Registration Statement or Underwriting Agreement and such holders will agree to indemnify the Company and any amendment or supplement thereto or underwriter with respect to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid information furnished by them in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable writing to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure for inclusion therein substantially to the benefit of any Holder Indemnitee on account of any such Loss arising from same extent as the sale of Underwriters have indemnified the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected Company in the definitive prospectusUnderwriting Agreement.
(f) In connection with If the offering pursuant to any offering involving an underwriting of shares of the Company’s capital stockregistration statement provided for herein is made through underwriters, the Company shall not be required under Section 8(a) to include will enter into an underwriting agreement in customary form and indemnify, in customary form, such underwriters and each person who controls any such underwriter within the meaning of the Holders’ Warrant Shares in such Securities Act. Such underwriting unless they accept agreement shall contain provisions for the terms indemnification of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters)in customary form, and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company provided that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company aggregate amount that may be recovered from any such underwriter pursuant to such provisions shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according limited to the total amount of securities entitled price at which the Warrant Shares purchased by any such underwriter under such underwriting agreement were offered to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders)the public.
Appears in 1 contract
Samples: Underwriting Agreement (American Capital Strategies LTD)
Registration of Warrant Shares. (a) If (but without If, at any obligation time prior to do so) the Company proposes to register (including for this purpose a registration effected by close of business on the Company for stockholders other than [fifth][tenth] anniversary of the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a Effective Date, there is no registration statement relating either to in effect for the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction)Warrant Shares, the Company shallCompany, at such time, promptly give each Holder written notice of such proposed registration. Upon upon the written request of each Holder given within twenty (20) days after mailing holders of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions Warrants and of Section 8(c), endeavor to cause to be registered under the Act all Warrant Shares representing an aggregate of 51% or more of the Warrant Shares, will file with the Securities and Exchange Commission under the Securities Act, such registration statements and amendments thereto and such other flings as may be required to permit the public offering and sale of such Warrant Shares that each such Holder has requested in compliance with the Securities Act. The Company shall be required to be registeredregister Warrant Shares no more than once pursuant to this Section 5.01(a).
(b) Whenever required under The Company will permit, subject to the last sentence of this Section 8(a) 5.01(b), any Warrant Shares to effect be included, at the registration request of any the holders of such Warrant Shares, in any registration of securities of the Company shall, as expeditiously as reasonably possible use reasonable efforts to (iother than shares of Preferred Stock for an employees’ option or stock purchase plan or shares registered on Form S-4 in connection with an arms-length merger transaction) file under a registration statement (filed by the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective Company under the Securities Act at any time prior to the close of 1933, as amended (business on the "Act") as soon thereafter as reasonably practicable[ ] anniversary of the Effective Date. The Company promptly shall provide written notice to the registered holders of all Warrants and Warrant Shares at least 30 days prior to the filing of any such registration statement sent by registered mail to the address of record of each Holder with such copies holder. If the offering pursuant to any registration statement described in this Section 5.01(b) is made through underwriters and the managing underwriter of such offering shall advise the Company in writing that, in its opinion, the distribution of the final prospectus contained number of Warrant Shares requested to be included in the Registration Statement after it becomes effective as they shall reasonably request. In addition, registration concurrently with the securities being registered by the Company would materially and adversely affect the distribution of such securities by the Company, then all selling security holders (but not the Company) shall (a) use reasonable efforts reduce the amount of securities each intended to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all distribute through such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") offering on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filedpro rata basis.
(c) Notwithstanding anything contained herein Each such holder shall pay the underwriting discount attributable to such holder’s Warrant Shares, any transfer tax payable with respect thereto and the fees and expenses of such holder’s counsel. All other expenses of registration under Section 5.01(a), or Section 5.01(b) shall be borne by the Company.
(d) The Company will agree to indemnify the holders of Warrant Shares that are included in a registration statement or amendments to existing registration statements pursuant to this Section 5.01 substantially to the contrarysame extent as the Company has agreed to indemnify the Underwriters in the Underwriting Agreement and such holders will agree to indemnify the Company and any underwriter with respect to information furnished by them in writing to the Company for inclusion therein substantially to the same extent as the Underwriters have indemnified the Company in the Underwriting Agreement.
(e) If the offering pursuant to any registration statement provided for herein is made through underwriters, the Company will enter into an underwriting agreement in customary form and indemnify, in customary form, such underwriters and each person who controls any such underwriter within the meaning of the Securities Act. Such underwriting agreement shall contain provisions for the indemnification of the Company in customary form, provided that the aggregate amount that may be recovered from any such underwriter pursuant to such provisions shall be limited to the total price at which the Warrant Shares purchased by any such underwriter under such underwriting agreement were offered to the public.
(f) During any consecutive 365-day period, the Company shall be entitled to postpone suspend the filing availability of any registration statement applicable to the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for nonup to two 45 consecutive-disclosure continues, day periods if the Company would be required to disclose in the Registration Statement the existence Board of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests Directors of the Company not to disclose at determines in the exercise of its reasonable judgment that there is a valid business purpose for such time, suspension and unless and until each Holder furnishes provides notice to the Company in writing information Warrantholders that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delay.
(d) Each Holder shall (i) reasonably cooperate with the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereof.
(e) The Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i)determination was made; provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus no event shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectus.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include disclose the business purpose for such suspension if the Company determines in good faith that such business purpose must remain confidential. There can be no assurance and the offering only Company provides no such assurance that number of such securitiesit will be able to file, including Warrant Sharescause to be declared effective, which the underwriters determine in their sole discretion will not jeopardize the success or keep a registration statement continuously effective, until all of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder Warrants have been exercised or in such other proportions as shall mutually be agreed to by such selling stockholders)have expired.
Appears in 1 contract
Registration of Warrant Shares. (a) If (but without If, at any obligation time prior to do so) the Company proposes to register (including for this purpose a registration effected by close of business on the Company for stockholders other than [fifth][tenth] anniversary of the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a Effective Date, there is no registration statement relating either to in effect for the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction)Warrant Shares, the Company shallCompany, at such time, promptly give each Holder written notice of such proposed registration. Upon upon the written request of each Holder given within twenty (20) days after mailing holders of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions Warrants and of Section 8(c), endeavor to cause to be registered under the Act all Warrant Shares representing an aggregate of 51% or more of the Warrant Shares, will file with the Securities and Exchange Commission under the Securities Act, such registration statements and amendments thereto and such other filings as may be required to permit the public offering and sale of such Warrant Shares that each such Holder has requested in compliance with the Securities Act. The Company shall be required to be registeredregister Warrant Shares no more than once pursuant to this Section 5.01(a).
(b) Whenever required under The Company will permit, subject to the last sentence of this Section 8(a) 5.01(b), any Warrant Shares to effect be included, at the registration request of any the holders of such Warrant Shares, in any registration of securities of the Company shall, as expeditiously as reasonably possible use reasonable efforts to (iother than shares of Preferred Stock for an employees’ option or stock purchase plan or shares registered on Form S-4 in connection with an arms-length merger transaction) file under a registration statement (filed by the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective Company under the Securities Act at any time prior to the close of 1933, as amended (business on the "Act") as soon thereafter as reasonably practicable[ ] anniversary of the Effective Date. The Company promptly shall provide written notice to the record holders of all Warrants and Warrant Shares at least 30 days prior to the filing of any such registration statement sent by registered mail to the address of record of each Holder with such copies holder. If the offering pursuant to any registration statement described in this Section 5.01(b) is made through underwriters and the managing underwriter of such offering shall advise the Company in writing that, in its opinion, the distribution of the final prospectus contained number of Warrant Shares requested to be included in the Registration Statement after it becomes effective as they shall reasonably request. In addition, registration concurrently with the securities being registered by the Company would materially and adversely affect the distribution of such securities by the Company, then all selling security holders (but not the Company) shall (a) use reasonable efforts reduce the amount of securities each intended to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all distribute through such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") offering on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filedpro rata basis.
(c) Notwithstanding anything contained herein Each such holder shall pay the underwriting discount attributable to such holder’s Warrant Shares, any transfer tax payable with respect thereto and the contraryfees and expenses of such holder’s counsel. All other expenses of registration under Section 5.01(a), the Company or Section 5.01(b) shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided borne by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous DelayCompany.
(d) Each Holder shall (i) reasonably cooperate The Company will agree to indemnify the holders of Warrant Shares that are included in a registration statement or amendments to existing registration statements pursuant to this Section 5.01 substantially to the same extent as the Company has agreed to indemnify the Underwriters in the Underwriting Agreement and such holders will agree to indemnify the Company and any underwriter with respect to information furnished by them in writing to the Company for inclusion therein substantially to the same extent as the Underwriters have indemnified the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereofUnderwriting Agreement.
(e) The If the offering pursuant to any registration statement provided for herein is made through underwriters, the Company shall indemnify will enter into an underwriting agreement in customary form and hold harmless indemnify, in customary form, such underwriters and each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each person who controls any such underwriter within the meaning of the foregoingSecurities Act. Such underwriting agreement shall contain provisions for the indemnification of the Company in customary form, a "Holder Indemnitee") who is or provided that the aggregate amount that may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising recovered from any actual or alleged misrepresentation or misstatement of facts or omission such underwriter pursuant to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or such provisions shall be limited to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred total price at which the Warrant Shares purchased by any such Holder Indemnitee in connection with underwriter under such claim, action, suit or proceeding or the defense thereof, except underwriting agreement were offered to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectuspublic.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders).
Appears in 1 contract
Samples: Warrant Agreement (Ametek Inc/)
Registration of Warrant Shares. The rights of the holder of this Interim Warrant to include Warrant Shares in a registered offering of securities conducted by the Company are set forth in this Section 7. Upon any closing of the Series A Placement, as such placement is described in the Interim Bridge Loan and Investment Agreement, the registration rights set forth in this Section 7 shall be superseded and replaced by the registration rights provided to purchasers of shares of Series A Preferred Stock in the Series A Placement; provided, however, that the registration rights provided to holders of Interim Warrants shall be on terms which are pari pasu to the registration rights provided to purchasers of shares of Series A Preferred Stock.
a. Holders of Registrable Securities, as defined below, shall have the demand registration rights described in this Subsection 7(a).
(a1) If On one occasion only, after the closing of an initial public offering of the Company's Common Stock securities (but without "INITIAL PUBLIC OFFERING"), in which offering the Company files a registration statement under the Securities Act of 1933 (the "ACT"), upon request by the holders of Registrable Securities who collectively hold or have the right to purchase at least 50% of the Registrable Securities, the Company will promptly take all necessary steps, to register or qualify the sale of Registrable Securities under the Act and such state laws as such holders may reasonably request; provided that (i) such request must be made on or within six (6) years from the date of this Warrant; (ii) the Company is only obligated to register Registrable Securities if the Company is eligible to use registration Form S-3, or a successor form; and (iii) the Registrable Securities included in any obligation such registration has a dollar value of not less than $2,000,000 as of the close of business on the date on which such request was made.
(2) Notwithstanding anything herein to do sothe contrary, the Company may delay filing a registration statement pursuant to Subsection 7(a), and may withhold efforts to cause the registration statement to become effective, for a period of time not exceeding ninety (90) days, if the Company determines in good faith that such registration might adversely affect the Company.
(3) The Company shall keep effective and maintain any registration, qualification, notification or approval specified in this Subsection 7(a) for such period as may be necessary for the holders of the Registrable Securities to dispose thereof, not to exceed ninety (90) days.
b. Holders of Registrable Securities shall have the incidental registration rights described in this Subsection 7(b).
(1) If, at any time beginning on the date six (6) months after the closing of an Initial Public Offering the Company proposes to register (including for this purpose a registration effected by the Company for stockholders other than the Holders) sale of any of its stock or other securities shares of Common Stock under the Act in connection with the public offering of such securities solely for cash (other than a on any registration statement relating either to the sale form which permits resales of securities to employees by security holders of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction)Company, the Company shall, at such time, promptly will give each Holder written notice to all registered holders of such proposed registrationRegistrable Securities, of its intention to do so. Upon On the written request of each Holder given the registered holders of a majority of the Registrable Securities received by the Company within twenty (20) days after mailing of such notice delivery by the Company in accordance with Section 18(d) hereofof any notice, the Company shall, subject to the provisions of Section 8(c), endeavor will act to cause to be registered under all such Registrable Securities, the Act all holders of the Warrant Shares that each such Holder has which shall have requested to be registered.
(b) Whenever required under this Section 8(a) to effect the registration of any Warrant Shares, the Company shall, as expeditiously as reasonably possible use reasonable efforts to (i) file a registration statement (the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective under the Securities Act of 1933, as amended (the "Act") as soon thereafter as reasonably practicable. The Company promptly shall provide each Holder with such copies of the final prospectus contained in the Registration Statement after it becomes effective as they shall reasonably request. In addition, the Company shall (a) use reasonable efforts to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filed.
(c) Notwithstanding anything contained herein to the contrary, the Company shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delay.
(d) Each Holder shall (i) reasonably cooperate with the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereof.
(e) The Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense qualification thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectus.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds registration statement proposed to be filed by the amount Company.
(2) If any such registration under Subsection 7(b) shall be underwritten in whole or in part, the Company may require that the Registrable Securities requested for inclusion pursuant to Subsection 7(b) be included in the underwriting on the same terms and conditions as the securities otherwise being sold through the underwriters. In the event that, in the good faith judgment of securities sold other than the managing underwriter of such public offering, the inclusion of all or any of the Registrable Securities originally covered by a request for registration would reduce the number of shares to be offered by the Company that the underwriters determine in their sole discretion is compatible or interfere with the success successful marketing of the shares of Common Stock offered in the underwritten offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled Registrable Securities requested to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed pursuant to by such selling stockholders).this Section
Appears in 1 contract
Samples: Interim Bridge Loan and Investment Agreement (Redline Performance Products Inc)
Registration of Warrant Shares. (a) If (but without any obligation to do so) the The Company proposes to register (including for this purpose a registration effected by the Company for stockholders other than the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than shall file a registration statement relating either with the Securities and Exchange Commission (the “Commission”) under the Securities Act for the purpose of registering on or before January 9, 2009, resale of the Warrant Shares, and shall use its best efforts to keep such registration statement continuously effective under the sale of securities Securities Act until all such shares covered by such registration statement have been sold or the Warrant Shares (or the Warrant Shares issuable through exercise under Section 2(c)) may be sold without restriction pursuant to employees of Rule 144 as determined by the counsel to the Company pursuant to a stock optionwritten opinion letter to such effect. The Company shall not be obligated to file a registration statement with respect to any Warrant Shares that have been sold or any Warrant Shares (or Warrant Shares issuable through exercise under Section 2(c)) may be sold without restriction pursuant to Rule 144 as determined by the counsel to the Company pursuant to a written opinion letter to such effect. If: (i) a registration statement is not effective with respect to any Warrant Shares the Company is obligated to register for resale on or before the date specified above; or (ii) after the effective date a registration statement ceases for any reason to remain continuously effective for all Warrant Shares for which it is required to be effective, stock purchase or similar plan the Holder is not permitted to utilize the prospectus therein to resell such shares for 20 consecutive trading days, but no more than an aggregate of 40 trading days during any 12-month period (which need not be consecutive trading days) (any such failure or a SEC Rule 145 transactionbreach being referred to as an “Event”, and for purposes of clause (i) the date on which such Event occurs, or for purposes of clause (ii) the date on which such 20 or 40 trading day period, as applicable, is exceeded being referred to as “Event Date”), then within 10 days following each such Event Date and within 10 days following each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such monthly anniversary date) until the applicable Event is cured, the Company shall, at such time, promptly give shall pay to each Holder written notice an amount in cash, as liquidated damages and not as a penalty, equal to 1.0% of such proposed registration. Upon the written request of each Holder given within twenty (20) days after mailing of such notice by aggregate market value on the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions of Section 8(c), endeavor to cause to be registered under the Act all Event Date of the Warrant Shares that each such Holder has requested to are not so registered or cannot be registered.
(b) Whenever required sold under this Section 8(a) to effect the an effective registration of any Warrant Shares, the Company shall, as expeditiously as reasonably possible use reasonable efforts to (i) file a registration statement (the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective under the Securities Act of 1933, as amended (the "Act") as soon thereafter as reasonably practicablestatement. The Company promptly Holder shall provide each Holder with such copies of the final prospectus contained in the Registration Statement after it becomes effective as they shall reasonably request. In addition, the Company shall (a) use reasonable efforts to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filed.
(c) Notwithstanding anything contained herein to the contrary, the Company shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing all information that may be reasonably required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delay.
(d) Each Holder shall (i) reasonably cooperate with the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or to comply with its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, disclosure obligations in the light of the circumstances under which they were made (as determined registration statement imposed by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereof.
(e) The Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Securities Act and the regulations promulgated thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectus.
(f) In connection with any offering involving an underwriting of shares . The failure of the Company’s capital stock, Holder for any reason to provide such information at least five Business Days prior to the filing of the registration statement covering the Warrant Shares shall effect a termination of any obligation of the Company to file any registration statement pertaining to the Warrant Shares and the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according have no liability to the total amount of securities entitled Holder with respect to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders)the liquidated damages stated above.
Appears in 1 contract
Samples: Warrant Agreement (Synthetic Blood International Inc)
Registration of Warrant Shares. (a) If (but without any obligation to do so) the Company proposes to register (including for this purpose a registration effected by the Company for stockholders other than the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), the Company shall, at such time, promptly give each Holder written notice of such proposed registration. Upon the written request of each Holder given within twenty (20) days after mailing of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions of Section 8(c), endeavor to cause to be registered under the Act all of the Warrant Shares that each such Holder has requested to be registered.
(b) Whenever required under this Section 8(a) to effect the registration of any Warrant Shares, the Company shall, as expeditiously as reasonably possible use reasonable efforts to (i) file a registration statement (the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective under the Securities Act of 1933, as amended (the "Act") as soon thereafter as reasonably practicable. The Company promptly shall provide each Holder with such copies of the final prospectus contained in the Registration Statement after it becomes effective as they shall reasonably request. In addition, the Company shall (a) use reasonable efforts to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filed.
(c) Notwithstanding anything contained herein to the contrary, the Company shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") ), which instruction Holder shall comply with, as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delay.
(d) Each Holder shall (i) reasonably cooperate with the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereof.
(e) The Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectus.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders).
Appears in 1 contract
Samples: Warrant Agreement (Ion Networks Inc)
Registration of Warrant Shares. (a) If (but without any obligation to do so) the Company at any time or times proposes to register (including for this purpose a registration effected by the Company for stockholders other than the Holders) any of its stock or other securities under the Securities Act in connection with the public offering of such securities solely for cash (other than a registration statement relating either effected solely to the sale implement an employee benefit plan or any other form or type of securities to employees of the Company registration in which Warrant Shares cannot be included pursuant to a stock option, stock purchase Commission rule or similar plan or a SEC Rule 145 transactionpractice), the Company shall, at such time, promptly will give each Holder written notice to the Holder of its intention to do so and such proposed registration. Upon the written request of each Holder given within twenty (20) days after mailing of such notice registration shall be governed by the Company in accordance with Section 18(d) hereof, terms and conditions of a certain Registration Rights Agreement of even date hereof between the Company shall, subject to Holder and the provisions of Section 8(c), endeavor to cause to be registered under the Act all of the Warrant Shares that each such Holder has requested to be registeredCompany.
(b) Whenever required The Holder's right to require registration of the Warrant Shares under this Section 8(a) 8, shall cease and terminate as to effect the registration of any Warrant Shares, the Company shall, as expeditiously as reasonably possible use reasonable efforts to (i) file a registration statement (the "Registration Statement"), registering for resale the particular Warrant Shares and (ii) cause the Registration Statement to be declared effective when such Warrant Shares shall have been effectively registered under the Securities Act in accordance with the Registration Rights Agreement. For purposes of 1933this Warrant Certificate, as amended shares of Common Stock issued hereunder shall also cease to be Warrant Shares when such shares have been sold to the public pursuant to an exemption from registration thereunder.
(the "Act"c) as soon thereafter as reasonably practicable. The Company promptly shall provide each Holder with such copies of the final prospectus contained in the Registration Statement after covenants that it becomes effective will, so long as they shall reasonably request. In addition, the Company shall (a) use reasonable efforts to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all such any Warrant Shares can be sold without limitation or delay under Rule 144 and (b) Warrants exercisable for Warrant Shares remain outstanding, file all reports and forms required to be filed by it under the Securities Act and the Securities Exchange Act of 19341934 and the rules and regulations promulgated by the Securities and Exchange Commission thereunder (or, if it is not required to file such reports , it will upon the request of any Holder make publicly available such information as amended ("Reports") on a timely basis so long as each will enable such Holder owns any to sell such Warrant Shares and shall provide each Holder copies thereof when filed.
(c) Notwithstanding anything contained herein to without registration within the contrary, the Company shall be entitled to postpone the filing limitations of the Registration Statement otherwise required to be prepared and filed exemptions provide by it in accordance with subparagraph (bi) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B Rule 144 promulgated under the Securities Act, with respect as such rule may be amended from time to such Holder's Warrant Shares being sold under the Registration Statement provided thattime, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delay.
(d) Each Holder shall (i) reasonably cooperate with the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, any similar rule or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined regulation hereafter promulgated by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereofSecurities Exchange Commission.
(e) The Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectus.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders).
Appears in 1 contract
Registration of Warrant Shares. As soon as reasonably practicable after the Commencement Date, but in any event no later than forty-five (45) days after the Commencement Date (the “Filing Date”), the Company will prepare, and file with the SEC a registration statement under the 1933 Act or an amendment to a registration statement previously filed by the Company with the SEC on such form as may be available to the Company to effect the registration hereby, such registration statement (or amendment thereto) and the prospectus included therein being referred to as the “Registration Statement”) for resale of the Warrant Shares (the “Registrable Securities”). Xxxxxx acknowledges and agrees that the Company may include in the Registration Statement securities to be sold on behalf of other parties. In connection with the Registration Statement, the Company shall:
(a) If prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the 1933 Act with respect to the disposition of the Registrable Securities;
(but without b) furnish such number of the Registration Statement and prospectuses and other documents incident thereto, including any obligation amendment of or supplement to do sothe prospectus, as the Holder may from time to time reasonably request;
(c) furnish to the Holder copies of any comments that the SEC provides in writing to the Company proposes pertaining to register (including for this purpose a registration effected by the Registration Statement, and any responses thereto from the Company to the SEC, in each case that pertain to the Holder as a selling shareholder or to the “Plan of Distribution” section, but not information which the Corporation believes would constitute material and nonpublic information;
(d) promptly provide notice to the Holder when the Registration Statement or any post-effective amendment thereto the same has become effective;
(e) use its commercially reasonable efforts to qualify the Registrable Securities for stockholders other than the Holders) any of its stock or offer and sale under such other securities under or blue sky laws of such jurisdictions in the Act United States as the Holder reasonably requests;
(f) use its commercially reasonable efforts to cause all such Registrable Securities to be initially listed on The NYSE Amex Exchange or any other applicable securities exchange or quoted on each inter-dealer quotation system on which the Company’s common stock is then listed or quoted; and
(g) pay all expenses incurred in connection with such registration, including but not limited to, registration and filing fees with the SEC, fees and expenses of compliance with securities or blue sky laws and fees and expenses incurred in connection with the public offering of such securities solely for cash (other than a registration statement relating either to the sale of securities to employees listing or quotation of the Registrable Securities. The Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), the Company shall, at such time, promptly give each Holder written notice of such proposed registration. Upon the written request of each Holder given within twenty (20) days after mailing of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions of Section 8(c), endeavor to cause to be registered under the Act all of the Warrant Shares that each such Holder has requested to be registered.
(b) Whenever required under this Section 8(a) to effect the registration of any Warrant Shares, the Company shall, as expeditiously as reasonably possible shall use commercially reasonable efforts to have the Registration Statement declared effective under the 1933 Act as promptly as practicable after filing thereof with the SEC, but in no event later than (i) file a registration statement (120 days after the "Filing Date in the event that the SEC has notified the Company that it will not review the Registration Statement"), registering for resale the Warrant Shares and Statement or (ii) 150 days after the Filing Date in the event that the SEC has notified the Company that it will review the Registration Statement (the date under either (i) or (ii) is referred to as the “Effective Date”). The Company shall use commercially reasonable efforts to cause the Registration Statement to continue to be declared effective under until the Securities Act earlier to occur of 1933, as amended (A) the "Act") as soon thereafter as reasonably practicable. The Company promptly shall provide each Holder with such copies second anniversary of the final prospectus contained in Commencement Date and (B) the date that the Holder has either disposed of or has the ability to dispose of all the Registrable Securities within a single three month period pursuant to Rule 144 of the 1933 Act (“Registration Statement Effective Period”), and, during such period, to cause the Registration Statement and the prospectus contained therein to be updated as reasonably deemed necessary by the Company to enable the Holder to resell the Registrable Securities. If at any time during the Registration Statement Effective Period there is not an effective registration statement covering all of the Registrable Securities and the Company shall determine to prepare and file with the SEC a registration statement relating to an offering for its own account or the account of others under the 1933 Act of any of its equity securities, other than on Form S-4 or Form S-8 (each as promulgated under the 1933 Act) or their then equivalents relating to equity securities to be issued solely in connection with any acquisition of any entity or business or equity securities issuable in connection with the stock option or other employee benefit plans, then the Company shall send to Holder a written notice of such determination and, if within five (5) business days after it becomes effective as they the date of such notice, Holder shall reasonably request. In additionso request in writing, the Company shall (a) use reasonable efforts include in such registration statement all or any part of such Registrable Securities Holder requests to keep be registered; provided, however, that, the Registration Statement effective Company shall not be required to register any Registrable Securities pursuant to this Section 8 that are eligible for a period ending on the earlier of (x) 120 days from its effective date or (y) when all such Warrant Shares can be sold resale without limitation or delay under regard to volume limitations pursuant to Rule 144 promulgated under the 1933 Act or that are the subject of a then effective registration statement; provided further, that it shall be a condition to the inclusion of such Registrable Securities on such registration statement that Holder agrees to the same terms and conditions regarding method of sale applicable to the securities otherwise being sold through such registration. Promptly upon any registration statement filed pursuant to this Section 8 being declared effective by the SEC, the Company will file a related form of final prospectus pursuant to Rule 424(b) promulgated under the 1933 Act. Holder agrees to indemnify the Company, the Company’s officers, directors, employees, and agents, and each underwriter and selling broker, if any, and each person and/or entity, if any, who controls or is controlled by the Company, against liability (b) file all reports including liability under the 1933 Act and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports"the “1934 Act”) on a timely basis so long as each arising by reason of any breach of any representation, warranty, or covenant made by Holder owns in this Warrant and/or any Warrant Shares and shall provide each Holder copies thereof when filed.
(c) Notwithstanding anything statement contained herein to the contrary, the Company shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each caseStatement, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes Xxxxxx provided to the Company in writing information explicitly for use in the Registration Statement, being false or misleading or omitting to state a material fact necessary to be stated in order that may the statements made in the Registration Statement, in the circumstances in which they are made, not be misleading; provided that in no event will the aggregate amount Holder is required to prepare pay pursuant to such indemnification obligations exceed the disclosure required greater of the aggregate purchase price paid by Items 507 Holder hereunder and 508 the amount of Regulation S-B the net proceeds received by Xxxxxx upon the sale of the Registrable Securities giving rise to such indemnification obligation. The Company hereby agrees to indemnify Holder, its officers and directors, and each person, if any, who controls the Holder against liability (including liability under the 1933 Act and the 1934 Act) arising by reason of (i) any statement (other than a statement provided by Xxxxxx as described above) in or incorporated by reference in the Registration Statement being false or misleading or omitting to state a material fact necessary to be stated in order that the statements made in or incorporated by reference in the Registration Statement, in the circumstances in which they are made, not be misleading, (ii) any violation by the Company of the 1933 Act, the 1934 Act, any state securities laws or any rule or regulation promulgated under the 1933 Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delay.
(d) Each Holder shall (i) reasonably cooperate with the Company 1934 Act or any state securities laws in connection with the preparation and filing Registration Statement, or (iii) any breach of the Registration Statement and execute and deliver any agreements or instruments reasonably requested covenant made by the Company in this Warrant. If a claim for indemnification under this Section 8 is unavailable (by reason of public policy or its counsel otherwise) or insufficient to hold harmless an indemnified party in connection therewith and (ii) upon discovery that, or upon the happening respect of any event losses referred to herein, then each indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of whichsuch losses, in such proportion as is appropriate to reflect the Registration Statement (relative fault of the indemnifying party and indemnified party as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or any prospectus included therein), as then in effect, includes an alleged untrue statement of a material fact or omits omission or alleged omission of a material fact, was taken or made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. statement or omission. The amount paid or payable by a party as a result of any losses shall be deemed to include, subject to the limitations set forth herein, any reasonable attorney , or other reasonable fees or expenses incurred by such party in connection with any proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for herein was available to such party in accordance with its terms. Upon receipt of a notice (a “Suspension Notice”) from the Company of the happening of any event that makes any statement made in the Registration Statement or related prospectus untrue or which requires the making of any changes in such Registration Statement or prospectus so that they will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made not misleading, Xxxxxx agrees that it shall forthwith discontinue disposition of shares pursuant to such Registration Statement until Xxxxxx’s receipt of the copies of the supplemented or amended prospectus (as determined which the Company shall use commercially reasonable efforts to prepare and distribute promptly) or until it is advised in writing by the Company that the use of the prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the prospectus. Notwithstanding anything to the contrary in this Warrant, upon the delivery of a Suspension Notice the Company may delay the filing of any required amendment or supplement to the Registration Statement if: (a) in the good faith and reasonable judgment of the Board of Directors of the Company, disclosure of such amended information could be seriously detrimental to the Company, and the Board of Directors of the Company concludes, as a result, that it is in the best interest of the Company to defer the filing of such amendment or supplement at such time, and (b) the Company furnishes to Holder a certificate signed by the Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company, it could be seriously detrimental to the Company for such amendment or supplement to be filed at such time and that it is, therefore, in the best interest of the Company to defer the filing of such amendment or supplement to the Registration Statement; provided, however, that (i) the Company shall have the right to defer such filing for a period of not more than thirty (30) days, (ii) the Company shall not defer its counsel obligation in its sole discretion)this manner more than two times and (iii) the Registration Statement Effective Period shall be extended for the amount of time that the Registration Statement is unavailable due to such a deferral. The Company shall be permitted to enter stop transfer instructions with the Company’s transfer agent with respect to the Registrable Securities during any period under which a Suspension Notice shall be in effect. The provisions of this Section 8 shall terminate with respect to any particular Registrable Securities when such Registrable Securities shall have been sold or otherwise disposed of in accordance with the intended method of disposition set forth in the Registration Statement. As long as the Holder owns any Registrable Securities, forthwith discontinue its disposition the Company shall use commercially reasonable efforts to file all required reports with the SEC, or otherwise make available “adequate current public information” about itself, within the meaning of Warrant Shares Rule 144(c) under the 1933 Act, to potentially make available to the Holder the benefits of certain rules and regulations of the SEC which may permit the sale of the Registrable Securities without registration. Notwithstanding the foregoing, to the extent that a holder of Registrable Securities may dispose of such Registrable Securities pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereof.
(e) The Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectus.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) liable to include any such holder for any breach of the Holders’ Warrant Shares in such underwriting unless they accept the terms provisions of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders)this Section 8.
Appears in 1 contract
Registration of Warrant Shares. (a) If (but without any obligation to do so) The Company shall ------------------------------ cause the Company proposes to register (including for this purpose a registration effected by the Company for stockholders other than the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), the Company shall, at such time, promptly give each Holder written notice of such proposed registration. Upon the written request of each Holder given within twenty (20) days after mailing of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions of Section 8(c), endeavor to cause Warrant Shares to be registered under the Securities Act all on the date that they are issuable to FBR pursuant to the Underwriting Agreement and will use its best efforts to keep such registration effective through the close of business on the fifth anniversary of the Warrant Shares that each such Holder has requested to be registeredEffective Date.
(b) Whenever required under this Section 8(a) If, at any time prior to the close of business on the fifth anniversary of the Effective Date, there is no registration statement in effect for the registration of any Warrant Shares, the Company shallCompany, as expeditiously as reasonably possible use reasonable efforts to (i) file a registration statement (upon the "Registration Statement"), registering for resale written request of holders of Warrants and of Warrant Shares representing an aggregate of 50% or more of the Warrant Shares Shares, will file with the Securities and (ii) cause the Registration Statement to be declared effective Exchange Commission under the Securities Act Act, such registration statements and amendments thereto and such other fillings as may be required to permit the public offering and sale of 1933, as amended (such Warrant Shares in compliance with the "Securities Act") as soon thereafter as reasonably practicable. The Company promptly shall provide each Holder with such copies of the final prospectus contained in the Registration Statement after it becomes effective as they shall reasonably request. In addition, the Company shall (a) use reasonable efforts be required to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all such register Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required only once pursuant to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filedthis Section 6.02(b).
(c) Notwithstanding anything contained herein The Company will permit any Warrant Shares to be included, at the request of the holders of such Warrant Shares, in any registration of securities of the Company (other than shares of Common Stock for an employees' option or stock purchase plan) under a registration statement filed by the Company under the Securities Act at any time prior to the contrary, close of business on the seventh anniversary of the Effective Date. The Company shall be entitled provide written notice to postpone the record holders of all Warrants and Warrant Shares at least 30 days prior to the filing of the Registration Statement otherwise required to be prepared and filed any such registration statement sent by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes registered mail to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 address of Regulation S-B promulgated under the Act, with respect to record of each such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delayholder.
(d) Each Holder such holder shall (ipay the underwriting discount attributable to such holder's Warrant Shares, any transfer tax payable with respect thereto and the fees and expenses of such holder's counsel. All other expenses of registration under Section 6.02(a), Section 6.02(b) reasonably cooperate with the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested Section 6.02(c) shall be borne by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereofCompany.
(e) The Company shall will agree to indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each the holders of Warrant Shares that are included in a registration statement or amendments to existing registration statements pursuant to this Section 6.02 substantially to the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened same extent as the Company has agreed to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make indemnify the facts stated under the circumstances not materially misleading, Underwriters in the Registration Statement or Underwriting Agreement and such holders will agree to indemnify the Company and any amendment or supplement thereto or underwriter with respect to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid information furnished by them in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable writing to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure for inclusion therein substantially to the benefit of any Holder Indemnitee on account of any such Loss arising from same extent as the sale of Underwriters have indemnified the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected Company in the definitive prospectusUnderwriting Agreement.
(f) In connection with If the offering pursuant to any offering involving an underwriting of shares of the Company’s capital stockregistration statement provided for herein is made through underwriters, the Company shall not be required under Section 8(a) to include will enter into an underwriting agreement in customary form and indemnity, in customary form, such underwriters and each person who controls any such underwriter within the meaning of the Holders’ Warrant Shares in such Securities Act. Such underwriting unless they accept agreement shall contain provisions for the terms indemnification of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters)in customary form, and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company provided that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company aggregate amount that may be recovered from any such underwriter pursuant to such provisions shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according limited to the total amount of securities entitled price at which the Warrant Shares purchased by any such underwriter under such underwriting agreement were offered to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders)the public.
Appears in 1 contract
Registration of Warrant Shares. (a) If (but without any obligation to do so) the Company proposes to register (including for this purpose a registration effected by the Company for stockholders other than the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), the Company shall, at such time, promptly give each Holder written notice of such proposed registration. Upon the written request of each Holder given within twenty (20) days after mailing of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions of Section 8(c), endeavor to cause to be registered under the Act all of the Warrant Shares that each such Holder has requested to be registered.
(b) Whenever required under this Section 8(a) to effect the registration of any Warrant Shares, the The Company shall, as expeditiously soon as reasonably possible use reasonable efforts to practicable after the Commencement Date, at the Company's sole cost and expense (iother than the fees and disbursements of counsel for the Holders and the underwriting discounts, if any) prepare and file with the SEC a registration statement on Form S-3 or any other available form approved by the SEC (the "Registration Statement"), ) registering for resale the issuance of the Warrant Shares and (ii) will use its reasonable best efforts through its officers, directors, auditors and counsel to cause the such Registration Statement to be declared become effective under as soon as reasonably practicable.
(b) Subject to the conditions set forth below, the Company agrees to indemnify and hold harmless the Holders, its officers, directors, partners, employees, agents, counsel, and each person, if any, who controls any such person within the meaning of Section 15 of the Securities Act or Section 20(a) of 1933, as amended (the "Act") as soon thereafter as reasonably practicable. The Company promptly shall provide each Holder with such copies of the final prospectus contained in the Registration Statement after it becomes effective as they shall reasonably request. In addition, the Company shall (a) use reasonable efforts to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended (the "ReportsExchange Act") on a timely basis so long as each Holder owns ), from and against any Warrant Shares and all loss, liability, charge, claim, damage and expense whatsoever (which shall provide each Holder copies thereof when filed.
(c) Notwithstanding anything contained herein to the contraryinclude, the Company shall for all purposes of this Section 2.03, but not be entitled to postpone the filing of the Registration Statement otherwise required to be prepared limited to, attorneys' fees and filed by it any and all reasonable expenses whatsoever incurred in accordance with subparagraph (b) orinvestigating, in the event the Registration Statement has been declared effectivepreparing or defending against any litigation, without suspending such effectivenesscommenced or threatened, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell claim whatsoever, and any and all amounts paid in settlement of any claim or distribute any Warrant Shares (a "Delay"litigation) as long as the reason for non-disclosure continuesand when incurred, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situationarising out of, transaction based upon or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delay.
(d) Each Holder shall (i) reasonably cooperate with the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements untrue statement or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an alleged untrue statement of a material fact contained (A) in any Registration Statement, preliminary prospectus or omits final prospectus (as from time to time amended and supplemented) or any amendment or supplement thereto, relating to the sale of any of the Warrant Shares or (B) in any application or other document or communication (in this Section 2.03 collectively called an "application") executed by or on behalf of a Holder or based upon written information furnished by or on behalf of a Holder filed in any jurisdiction in order to register or qualify any of the Warrant Shares under the securities or blue sky laws thereof or filed with the SEC or any securities exchange; or any omission or alleged omission to state any a material fact required to be stated therein or necessary to make the statements made therein not misleading, unless (x) such statement or omission was made in reliance upon and in conformity with written information furnished to the light Company with respect to a Holder by or on behalf of such Holder expressly for inclusion in any Registration Statement, preliminary prospectus or final prospectus, or any amendment or supplement thereto, or in any application, as the case may be, or (y) such loss, liability, charge, claim, damage or expense arises out of a Holder's failure to comply with the terms and provisions of this Agreement. The foregoing agreement to indemnify shall be in addition to any remedy a Holder may otherwise have, including remedies arising under this Agreement. If any action is brought against a Holder or any of its officers, directors, partners, employees, agents or counsel, if any, or any controlling persons of such person (an "indemnified party") in respect of which indemnity may be sought against the Company pursuant to the foregoing paragraph, such indemnified party or parties shall promptly notify the Company in writing of the circumstances under which they were made institution of such action (as determined but the failure so to notify shall not relieve the Company from any liability other than pursuant to this Section 2.03(b)) and the Company shall promptly assume the defense of such action, including the employment of counsel (reasonably satisfactory to such indemnified party or parties) provided that the indemnified party shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such indemnified party or parties unless the employment of such counsel shall have been authorized in writing by the Company in connection with the defense of such action or its the Company shall not have promptly employed counsel in its sole discretion), forthwith discontinue its disposition reasonably satisfactory to such indemnified party or parties to have charge of Warrant Shares pursuant the defense of such action or such indemnified party or parties shall have reasonably concluded that there may be one or more legal defenses available to it or them or to other indemnified parties which are different from or additional to those available to the Registration StatementCompany, until in any of which events such time as such Holder (or any holders) have received a supplemented or amended prospectus from fees and expenses shall be borne by the Company relating and the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties. Anything in this Section 2.03 to the contrary notwithstanding, the Company shall not be liable for any settlement of any such claim or action effected without its written consent. The Company shall not, without the prior written consent of each indemnified party that is not released as described in this sentence, settle or compromise any action, or permit a default or consent to the entry of judgment in or otherwise seek to terminate any pending or threatened action, in respect of which indemnity may be sought hereunder (whether or not any indemnified party is a party thereto) unless such settlement, compromise, consent or termination includes an unconditional release of each indemnified party from all liability in respect of such action. The Company agrees promptly to use its best efforts notify the Holders of the commencement of any litigation or proceedings against the Company or any of it officers or directors in connection with the sale of Common Stock or any preliminary prospectus, prospectus, Registration Statement, or amendment or supplement thereto, or any application relating to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities sale of such amendments or supplements reasonably sufficient for the distribution thereofCommon Stock.
(ec) The Company shall Holders agree to indemnify and hold harmless the Company, each Holder director of the Company, each officer of the Company who shall have signed any Registration Statement covering the Common Stock held by the Holders, each other person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act and its or their respective officers, directors, employees, members, agents, affiliates counsel and control persons Plaintiffs' Counsel (each of the foregoing, a "Holder Indemnitee") who as that term is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, defined in the Stipulation), to the same extent as the foregoing indemnity from the Company to the Holders in Section 2.03(b) hereof but only with respect to statements or omissions, if any, made in any Registration Statement Statement, preliminary prospectus, or final prospectus (as from time to time amended and supplemented), or any amendment or supplement thereto or in any application, in reliance upon and in conformity with written information furnished to the prospectus incorporated therein from Company with respect to the Holders by or on behalf of a Holder, expressly for inclusion in any such Registration Statement, preliminary prospectus, or final prospectus, or any amendment or supplement thereto or in any application, as the case may be. If any action shall be brought against the Company or any other person to be so indemnified based on any such Registration Statement, preliminary prospectus, or final prospectus, or any amendment or supplement thereto or in any application, and in respect of which indemnity may be sought against a Holder pursuant to this Section 2.03(c) a Holder shall have the rights and duties given to the Company, and the Company and each other person so indemnified shall have the rights and duties given to the indemnified parties, by the provisions of Section 2.03(b).
(d) To provide for just and equitable contribution, if (i) an indemnified party makes a claim for indemnification pursuant to Section 2.03(b) or 2.03(c) (subject to the limitations thereof) but it is found in a final judicial determination, not subject to further appeal, that such indemnification may not be enforced in such case, even though this Agreement expressly provides for indemnification in such case, or (ii) any claimindemnified or indemnifying party seeks contribution under the Securities Act, the Exchange Act or otherwise, then the Company (including for this purpose any contribution made by or on behalf of any director of the Company, any officer of the Company who signed any such Registration Statement, any controlling person of the Company, and its or their respective counsel) as one entity, and the Holders (including for this purpose any contribution by or on behalf of an indemnified party) as a second entity, shall contribute to the losses, liabilities, costs claims, damages and expenses (including attorney's feeswhatsoever to which any of them may be subject, judgments, fines on the basis of relevant equitable considerations such as the relative fault of the Holders and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee the Company in connection with the facts which resulted in such claimlosses, actionliabilities, suit or proceeding or claims, damages and expenses. The relative fault, in the defense thereof, except to the extent such Loss is the direct result case of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or statement, alleged untrue statement or statement, omission or alleged omission shall be determined by, among other things, whether such statement, alleged statement, omission or alleged omission relates to information supplied by a Holder or the Company, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement, alleged statement, omission or alleged omission. Each Holder and the Company agree that it would be unjust and inequitable if the respective obligations of the Holders and the Company for contribution were determined by pro rata or per capita allocation of the aggregate losses, liabilities, claims, damages and expenses (even if the Holders and the other indemnified parties were treated as one entity for such purpose) or by any other method of allocation that does not reflect the equitable considerations referred to in this Section 2.03(d). No person guilty of a material fact contained fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who is not guilty of such fraudulent misrepresentation. For purposes of this Section 2.03(d) each person, if any, who controls a Holder within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act and each officer, director, partner, employee, agent and counsel of a Holder or control person shall have the same rights to contribution as the Company or control person and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act, each officer of the Company who shall have signed any such Registration Statement, each director of the Company, and its or their respective counsel shall have the same rights to contribution as the Company, subject in such preliminary prospectus was corrected each case to the provisions of this Section 2.03(d). Anything in this Section 2.03(d) to the definitive prospectuscontrary notwithstanding, no party shall be liable for contribution with respect to the settlement of any claim or action effected without its written consent. This Section 2.03(d) is intended to supersede any right to contribution under the Securities Act, the Exchange Act or otherwise.
(fe) In connection with any offering involving an underwriting Notwithstanding the foregoing provisions of shares this Section 2.03, in the event the Stipulation shall be the subject of appeal by members of the Company’s capital stockSettlement Class or other persons, the Company may in its sole discretion, cease its efforts to file or to cause the declaration of effectiveness of the Registration Statement and/or cause the withdrawal of such Registration Statement. Upon resolution of such appeal, the Company shall not be required under Section 8(a) forthwith use its reasonable best efforts to include any file or cause the declaration of effectiveness of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters)Registration Statement, and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according subject to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders)foregoing provisions.
Appears in 1 contract
Samples: Warrant Agreement (American Bank Note Holographics Inc)
Registration of Warrant Shares. (a) If (but without at any obligation time or from time to do so) time --------- ------------------------------ the Company proposes shall determine to register (including its Common Stock, either for this purpose its own account or for the account of any holder of the Company's Common Stock, the Company will promptly give written notice thereof to the Holder, and include in such registration and in any underwriting involved therein, all the Warrant Shares specified in a registration effected written request made within 20 days after the date of such written notice from the Company, by the Holder. If the registration of which the Company gives notice is for stockholders other than a registered public offering involving an underwriting, the Holders) Company shall so advise the Holder as a part of the written notice set forth above. In the event that the Holder elects to participate in any such registration, the right of its stock or other securities under the Act Holder to registration shall be conditioned as follows:
1. If the registration gives notice of an underwriting and the managing underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the managing underwriter may limit the number of Warrant Shares to be included in such registration.
2. The Holder shall furnish to the Company such information regarding the Holder, the Warrant Shares and the distribution proposed by the Holder as the Company may request in writing and shall be required in connection with any registration pursuant to this Warrant. The Holder further agrees to notify the public offering Company promptly (i) of such securities solely for cash (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), the Company shall, at such time, promptly give each Holder written notice of such proposed registration. Upon the written request of each Holder given within twenty (20) days after mailing of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions of Section 8(c), endeavor to cause to be registered under the Act all of the Warrant Shares that each such Holder has requested to be registered.
(b) Whenever required under this Section 8(a) to effect the registration of any Warrant Shares, the Company shall, as expeditiously as reasonably possible use reasonable efforts to (i) file a registration statement (the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause in writing of any material changes in the Registration Statement information set forth in the registration statement relating to the Holder or its proposed distribution, or of any supplemental information required to be declared effective included in the registration statement relating to the Holder or its proposed distribution.
3. All selling expenses relating to Warrant Shares registered on behalf of the Holder shall be borne by the Holder. Selling expenses shall mean all underwriting discounts, selling commissions and stock transfer taxes applicable to the Warrant Shares registered by the Holder and all fees and disbursements of counsel for the Holder other than the fees and disbursements for one special counsel to the Holder or Holders.
4. The rights of the Holder granted pursuant to this Section E shall terminate, with respect to each Warrant Share, on the date that such Warrant Share may immediately be sold under Rule 144 of the Securities Act of 1933, as amended (the "Act") as soon thereafter as reasonably practicableamended.
5. The rights granted to the Holder under this Section E may be assigned to a Transferee by the Holder provided that (i) such transfer is accorded in accordance with applicable securities laws and the terms of this Warrant, (ii) such Transferee acquires all 50,000 Warrant Shares from the Holder, (iii) written notice is promptly given to the Company promptly shall provide each Holder with such copies stating the name and address of the final prospectus contained in Transferee and identifying the Registration Statement after it becomes effective as they shall reasonably request. In additionsecurities with respect to which the rights are being transferred, and (iv) such Transferee agrees to be bound by the provisions of this Section E.
(i) With respect to a registration pursuant to this Section E, the Company shall will indemnify the Holder, each of its officers, directors, partners and each person controlling such Holder (a) use reasonable efforts to keep the Registration Statement effective for each, a period ending on the earlier of (x) 120 days from its effective date or (y) when all such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("ReportsHolder Indemnitee") against all expenses, claims, losses, damages or liabilities arising out of or based on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filed.
(c) Notwithstanding anything contained herein to the contrary, the Company shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing untrue statement (or any subsequent holders thereofalleged untrue statement) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delay.
(d) Each Holder shall (i) reasonably cooperate with the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact contained in any registration statement, prospectus, circular or omits other document, or any amendment or supplement thereto, incident to any such registration, or based on any omission (or alleged omission) to state any therein a material fact required to be stated therein or necessary to make the statements therein not misleadingtherein, in the light of the circumstances under in which they were made (as determined made, not misleading, or any violation by the Company or of any securities law applicable to any such registration, and the Company will reimburse the Holder, each of its counsel in its sole discretion)directors, forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statementofficers, until such time as partners and each person controlling such Holder (or for any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary legal and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereof.
(e) The Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and other expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with investigating, preparing or defending any such claim, loss, damage, liability or action, suit or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus Company shall not inure be liable in any case to the benefit extent that any such loss, claim, damage or liability arises out of or is based upon any untrue statement (or alleged untrue statement) or omission (or alleged omission) made in such registration statement, prospectus, circular or other document, or any amendment or supplement thereto, in reliance upon and in conformity with information furnished by any Holder Indemnitee on account to the Company for use in the preparation thereof.
(ii) With respect to a registration pursuant to this Section E, the Holder will indemnify the Company, each of any such Loss arising from its officers, directors, each person controlling the sale Company and each other holder of the Warrant Shares Company's securities covered by such Holder Indemnitee to registration statement, each of such other holder's officers, directors, partners and each person controlling such other holder against all expenses, claims, losses, damages or liabilities arising out of or based on any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement (or alleged untrue statement or omission or alleged omission statement) of a material fact contained in any registration statement, prospectus, circular or other document, or any amendment or supplement thereto, incident to any such preliminary prospectus was corrected registration, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the definitive prospectus.
(f) In circumstances in which they were made, not misleading, or any violation by the Holder of any securities law applicable to any such registration, and the Holder will reimburse the Company, such other holders, such directors, officers, partners or control persons for any legal and other expenses reasonably incurred in connection with investigating, preparing or defending any offering involving an underwriting of shares of such claim, loss, damage, liability or action but only to the Company’s capital stockextent that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, prospectus, circular or document in reliance upon and in conformity with information furnished to the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering a written instrument duly executed by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders Holder and stated to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders)specifically for use therein.
Appears in 1 contract
Samples: Warrant Agreement (Genaera Corp)
Registration of Warrant Shares. (a) If (but without any obligation to do so) the Company proposes to register (including for this purpose a registration effected by the Company for stockholders other than the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), the Company shall, at such time, promptly give each Holder written notice of such proposed registration. Upon the written request of each Holder given within twenty (20) days after mailing of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions of Section 8(c), endeavor to cause to be registered under the Act all of the Warrant Shares that each such Holder has requested to be registered.
(b) Whenever required under this Section 8(a) to effect the registration of any Warrant Shares, the Company shall, as expeditiously as reasonably possible use reasonable efforts to (i) file a registration statement (the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective under the Securities Act of 1933, as amended (the "Act") as soon thereafter as reasonably practicable. The Company promptly shall provide each Holder with such copies of the final prospectus contained in the Registration Statement after it becomes effective as they shall reasonably request. In addition, the Company shall (a) use reasonable efforts to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filed.
(c) Notwithstanding anything contained herein to the contrary, the Company shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation Regu- lation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delay.
(d) Each Holder shall (i) reasonably cooperate with the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company Com- pany agrees to use its best efforts to prepare any necessary amendments or supplements supp- lements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereof.
(e) The Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual act- ual or alleged misrepresentation or misstatement of facts or omission to represent repre- sent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated incorpor- ated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission omiss- ion for which such Holder Indemnitee is liable to the Company under Section 9(i9 (i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive defini- tive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectus.
(f) In connection with any offering involving an underwriting of shares of the Company’s 's capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ ' Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders).
Appears in 1 contract
Samples: Warrant Agreement (Ion Networks Inc)
Registration of Warrant Shares. (a) If (but without any obligation to do so) the Company proposes to register (including for this purpose a registration effected by the Company for stockholders other than the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), the Company shall, at such time, promptly give each Holder written notice of such proposed registration. Upon the written request of each Holder given within twenty (20) days after mailing of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions of Section 8(c), endeavor to cause to be registered under the Act all of the Warrant Shares that each such Holder has requested to be registered.
(b) Whenever required under this Section 8(a) to effect the registration of any Warrant Shares, the Company shall, as expeditiously as reasonably possible use reasonable efforts to (i) file a registration statement (the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective under the Securities Act of 1933, as amended (the "Act") as soon thereafter as reasonably practicable. The Company promptly shall provide each Holder with such copies of the final prospectus contained in the Registration Statement after it becomes effective as they shall reasonably request. In addition, the Company shall (a) use reasonable efforts to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filed.
(c) Notwithstanding anything contained herein to the contrary, the Company shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delay.
(d) Each Holder shall (i) reasonably cooperate with the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereof.
(e) The Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectus.
(f) In connection with any offering involving an underwriting of 5 shares of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders).
Appears in 1 contract
Samples: Warrant Agreement (Ion Networks Inc)
Registration of Warrant Shares. (a) If With respect to the first registration statement (but without any obligation to do soeither on Form S-3, S-1 or otherwise) the Company proposes to register (including for this purpose a registration effected filed by the Company for stockholders other than the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash U.S. Securities and Exchange Commission (other than a registration statement relating either to the “SEC”) covering the re-sale of securities to employees shares of capital stock of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transactionsold by the Company following the Initial Exercise Date (the “Registration Statement”), the Company shall, at shall cause such time, promptly give each Holder written notice Registration Statement to cover the re-sale of such proposed registration. Upon the written request of each Holder given within twenty (20) days after mailing of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions of Section 8(c), endeavor to cause to be registered under the Act all of the Warrant Shares that each such Holder has requested to be registered.
(b) Whenever required under this Section 8(a) to effect the registration of any Warrant Shares, the . The Company shallshall use its reasonable best efforts to, as expeditiously soon as reasonably possible use reasonable efforts to (i) file a registration statement (practicable following the "filing of the Registration Statement", but in no event later than 20 days following the filing of the Registration Statement (or 90 days following the filing of the Registration Statement solely in the event of a full review of the Registration Statement by the SEC), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective under by the Securities Act of 1933, as amended (the "Act"SEC.
b) as soon thereafter as reasonably practicable. The Company promptly shall provide each Holder with such copies of the final prospectus contained in After the Registration Statement after it becomes has been declared effective as they shall reasonably request. In additionby the SEC, the Company shall (a) use its reasonable best efforts to keep the Registration Statement continuously effective for a period ending on until the earlier of (x) 120 days from its effective date or (y) when that all such Warrant Shares can covered by the Registration Statement are sold or are able to be sold without limitation or delay under by the holders thereof by relying on Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934without any restriction, as amended ("Reports") on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filed.
(c) Notwithstanding anything contained herein to including volume limitation. Without limiting the contraryforegoing, the Company shall be entitled (i) prepare and file with the SEC such amendments to postpone the filing of the Registration Statement otherwise required and amendments or supplements to the prospectus used in connection therewith as may be prepared and filed by it in accordance reasonably necessary to comply with subparagraph (b) or, in the event provisions of the Registration Statement has been declared effective, without suspending such effectiveness, instruct Securities Act with respect to the Holder promptly in writing (sale or any subsequent holders thereof) not to sell or distribute any other disposition of all Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose included in the Registration Statement and (ii) register or qualify the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under included in the Registration Statement provided that, with respect to Delays because of information related to under the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delayapplicable state securities or blue sky laws.
(dc) Each Holder shall (i) reasonably cooperate The Company will pay all expenses associated with the Company in connection with the preparation and filing of the Registration Statement and execute any amendments or supplements thereto, and deliver any agreements actions or instruments reasonably requested by filings necessary to maintain the Company or its counsel in connection therewith effectiveness of the Registration Statement, including filing and (ii) upon discovery that, or upon the happening of any event as a result of whichprinting fees, the Registration Statement fees and expenses of the Company’s counsel and accounting fees and expenses, costs associated with clearing the Registrable Securities for sale under applicable state securities laws and listing fees, but excluding discounts, commissions, fees of underwriters, selling brokers, dealer managers or similar securities industry professionals with respect to the Warrant Shares being sold.
d) The Company shall indemnify and hold harmless, the Holders, from and against any losses to which any Holder may become subject (under the Securities Act or otherwise) to the extent such losses arise out of, directly or indirectly, any prospectus included therein), as then in effect, includes an untrue statement of a material fact contained in the Registration Statement or omits any other document filed in accordance with this Section 5, or any omission to state any material therein a fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereof.
(e) The Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained Company will not be liable in this Section 8(eany such case to the extent that any such losses arising out of, directly or indirectly, any untrue statement or omission, made in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Holder specifically for use in the preparation of the Registration Statement.
e) In addition, the Company covenants that it will file the reports required to be filed by it under the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and regulations adopted by the SEC thereunder in accordance with the requirements of the Securities Act and the Exchange Act and it will take such further action as the Holders may reasonably request to make available adequate current public information with respect to any preliminary prospectus shall not inure the Company meeting the current public information requirements of Rule 144(c) under the Securities Act, to the benefit extent required to enable the Holders to sell all Warrant Shares without registration under the Securities Act within the limitation of the exemptions provided by (i) Rule 144 under the Securities Act, as such Rule 144 may be amended from time to time, or (ii) any Holder Indemnitee on account similar rule or regulation hereafter adopted by the SEC. Upon the request of any the Holders, the Company will deliver to the Holders a written statement as to whether it has complied with such Loss arising from information and requirements. In addition, the Company agrees, at its sole expense, to cause its legal counsel to provide a legal opinion to the Company’s transfer agent that is in form and substance sufficient for such transfer agent to remove all applicable legends in connection with, and to otherwise facilitate, the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of under Rule 144 under the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectusSecurities Act.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders).
Appears in 1 contract
Samples: Common Stock Purchase Warrant (Societal CDMO, Inc.)
Registration of Warrant Shares. (a) If (but without any obligation The Company agrees to do so) include the Warrant Shares in the registration statement which the Company proposes has agreed to file with the Securities and Exchange Commission (the "SEC") promptly after the last closing date under the Private Placement to register (including for this purpose a registration effected by the Company for stockholders other than the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a registration statement relating either to the sale of securities to employees the shares of Common Stock issuable upon conversion of the Series D Preferred Stock sold in the Private Placement. The Company pursuant will use its best efforts to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), the Company shall, at have such time, promptly give each Holder written notice of registration statement declared effective and will keep such proposed registration. Upon the written request of each Holder given within twenty (20) days after mailing of registration statement current until such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions of Section 8(c), endeavor to cause to be registered under the Act all of time as the Warrant Shares that each such Holder has requested are fully tradeable pursuant to be registeredRule 144 (k) promulgated under the Securities Act.
(b) Whenever required In connection with any registration of Warrant Shares under this Section 8(a) to effect the registration of any Warrant Shares10, the Company shall, covenants and agrees as expeditiously as reasonably possible use reasonable efforts to follows:
(i) file a The Company shall pay all costs (excluding fees and expenses of counsel of any holder of Warrants Shares and any underwriting or selling commissions or other charges of any broker-dealer acting on behalf of any holder(s)), fees and expenses in connection with the registration statement filed pursuant to Section 10(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses and blue sky fees and expenses.
(ii) The Company will take all necessary action that may be required in qualifying or registering the "Registration Statement")Warrants Shares for offering and sale under the securities or blue sky laws of such states as reasonably are requested by the holder(s) of the Warrants, registering for resale provided that the Companv shall not be obligated to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(iii) The Company shall indemnify the holder(s) of the Warrant Shares and (ii) cause the Registration Statement to be declared effective under sold pursuant to the registration statement and each person, if any, who controls such holder(s) within the meaning of Section 15 of the Securities Act or Section 20(a) of 1933, as amended (the "Act") as soon thereafter as reasonably practicable. The Company promptly shall provide each Holder with such copies of the final prospectus contained in the Registration Statement after it becomes effective as they shall reasonably request. In addition, the Company shall (a) use reasonable efforts to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended (the "ReportsExchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) on a timely basis so long as each Holder owns to which any Warrant Shares and shall provide each Holder copies thereof when filed.
(c) Notwithstanding anything contained herein to of them may become subject under the contrarySecurities Act, the Company shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (Exchange Act or any subsequent holders thereof) not to sell other statute, common law or distribute otherwise, arising out of or based upon any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction untrue statement or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delay.
(d) Each Holder shall (i) reasonably cooperate with the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an alleged untrue statement of a material fact contained in such registration statement executed by the Company or omits based upon written information furnished by the Company filed in any jurisdiction in order to qualify the Warrant Shares under the securities laws thereof or filed with the SEC, any state securities commission or agency, the National Association of Securities Dealers, Inc., Nasdaq or any securities exchange, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements contained therein not misleading, unless such statement or omission was made in reliance upon and in conformity with written information furnished to the light of the circumstances under which they were made (as determined Company by the Company or its counsel holder(s) expressly for use in its sole discretion)such registration statement, forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereof.
(e) The Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or any application, as the case may be. If any action is brought against the holder(s) or any controlling person of the holder(s) in respect of which indemnity may be sought against the Company pursuant to this Section 10(b)(iii), the holder(s) or such controlling person shall, within thirty (30) days after the receipt of a summons or complaint, notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including, the employment and payment of reasonable fees and expenses of counsel (which counsel shall be reasonably satisfactory to the prospectus incorporated therein from and against any claimholder(s) or such controlling person), losses, liabilities, costs and expenses (including attorneybut the failure to give such notice shall not affect such indemnified person's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, right to indemnification hereunder except to the extent that the Company's defense of such Loss is action was materially adversely affected thereby. The holder(s) or such controlling person shall have the direct result right to employ its or their own counsel in any such case, but the fees and expenses of a misstatement such counsel shall be at the expense of the holder(s) or omission for which such Holder Indemnitee is liable to controlling person unless the employment of such counsel shall have been authorized in writing by the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectus.
(f) In connection with any offering involving an underwriting the defense of shares of the Company’s capital stocksuch action, the Company shall not have employed counsel to have charge of the defense of such action or such indemnified party or parties shall have reasonably concluded that there may be required under Section 8(adefenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties) to include in any of which events the Holders’ Warrant Shares in fees and expenses of not more than one additional firm of attorneys for the holder(s) and/or such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering controlling person shall be borne by the Company. If Except as expressly provided in the total amount of securitiesprevious sentence, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company event that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall have assumed the defense of any such action or claim, the Company shall not thereafter be required liable to include the holder(s) or such controlling person in investigating, preparing or defending any such action or claim. The Company agrees promptly to notify the offering only that number holder(s) of the commencement of any litigation or proceedings against the Company or any of its officers, directors or controlling persons in connection with the resale of the Warrant Shares or in connection with such registration statement.
(iv) The holders of the Warrant Shares to be sold pursuant to the registration statement, and their successors and assigns, shall severally, and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act, against all loss, claim, damage, expense or liability (including all expenses reasonable incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Securities Act, the Exchange Act or otherwise, arising from written information furnished by or on behalf of such securitiesholder(s), including or their successors or assigns, expressly for use in such registration statement. As used in this Section 10, references to "holders of the Warrant Shares, which " shall include the underwriters determine in their sole discretion will not jeopardize the success holders of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders)Warrants not yet exercised.
Appears in 1 contract
Samples: Warrant Agreement (Paradigm Medical Industries Inc)
Registration of Warrant Shares. (a) If The Company shall use its best efforts to keep effective the registration statement on Form S-2 (but without any obligation to do soNo. 333-86548) on which the Company proposes to register (including for this purpose a registration effected by Warrant Shares are currently registered until the Company for stockholders other than earlier of the Holders) any exercise of its stock all the Warrants or other securities under the Act in connection with third anniversary of the public offering effective date of such securities solely for cash (other than a registration statement. If, at any time prior to the close of business on the third anniversary of the Effective Date, there is no registration statement relating either to in effect for the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction)Warrant Shares, the Company shallCompany, at such time, promptly give each Holder written notice of such proposed registration. Upon upon the written request of each Holder given within twenty (20) days after mailing holders of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions Warrants and of Section 8(c), endeavor to cause to be registered under the Act all Warrant Shares representing an aggregate of 50% or more of the Warrant Shares, will file with the Securities and Exchange Commission under the Securities Act, such registration statements and amendments thereto and such other filings as may be required to permit the public offering and sale of such Warrant Shares that each such Holder has requested in compliance with the Securities Act. The Company shall be required to be registeredregister Warrant Shares no more than once pursuant to this Section 5.01(a).
(b) Whenever required under The Company will permit, subject to the last sentence of this Section 8(a) 5.01(b), any Warrant Shares to effect be included, at the registration request of any the holders of such Warrant Shares, in any registration of securities of the Company shall, as expeditiously as reasonably possible use reasonable efforts to (iother than shares of Common Stock for an employees' option or stock purchase plan or shares registered on Form S-4 in connection with an arms-length merger transaction) file under a registration statement (filed by the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective Company under the Securities Act at any time prior to the close of 1933, as amended (business on the "Act") as soon thereafter as reasonably practicablethird anniversary of the Effective Date. The Company promptly shall provide written notice to the record holders of all Warrants and Warrant Shares at least 30 days prior to the filing of any such registration statement sent by registered mail to the address of record of each Holder with such copies holder. If the offering pursuant to any registration statement described in this Section 5.01(b) is made through underwriters and the managing underwriter of such offering shall advise the Company in writing that, in its opinion, the distribution of the final prospectus contained number of Warrant Shares requested to be included in the Registration Statement after it becomes effective as they shall reasonably request. In addition, registration concurrently with the securities being registered by the Company would materially and adversely affect the distribution of such securities by the Company, then all selling security holders (but not the Company) shall (a) use reasonable efforts reduce the amount of securities each intended to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all distribute through such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") offering on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filedpro rata basis.
(c) Notwithstanding anything contained herein Each such holder shall pay the underwriting discount attributable to such holder's Warrant Shares, any transfer tax payable with respect thereto and the contraryfees and expenses of such holder's counsel. All other expenses of registration under Section 5.01(a), the Company or Section 5.01(b) shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided borne by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous DelayCompany.
(d) Each Holder shall (i) reasonably cooperate The Company will agree to indemnify the holders of Warrant Shares that are included in a registration statement or amendments to existing registration statements pursuant to this Section 5.01 substantially to the same extent as the Company has agreed to indemnify the Underwriters in the Underwriting Agreement and such holders will agree to indemnify the Company and any underwriter with respect to information furnished by them in writing to the Company for inclusion therein substantially to the same extent as the Underwriters have indemnified the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereofUnderwriting Agreement.
(e) The If the offering pursuant to any registration statement provided for herein is made through underwriters, the Company shall indemnify will enter into an underwriting agreement in customary form and hold harmless indemnify, in customary form, such underwriters and each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each person who controls any such underwriter within the meaning of the foregoingSecurities Act. Such underwriting agreement shall contain provisions for the indemnification of the Company in customary form, a "Holder Indemnitee") who is or provided that the aggregate amount that may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising recovered from any actual or alleged misrepresentation or misstatement of facts or omission such underwriter pursuant to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or such provisions shall be limited to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred total price at which the Warrant Shares purchased by any such Holder Indemnitee in connection with underwriter under such claim, action, suit or proceeding or the defense thereof, except underwriting agreement were offered to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectuspublic.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders).
Appears in 1 contract
Samples: Warrant Agreement (Meadowbrook Insurance Group Inc)
Registration of Warrant Shares. The Company shall prepare and, as soon as practicable, but in no event later than the 45th day after the initial trading date of the Common Stock on the Nasdaq Stock Market, LLC (a“Initial Trading Date”), file with the Commission an initial Registration Statement on Form S-1 (or any successor form) If (but without any obligation to do so) covering the Company proposes to register (including for this purpose a registration effected resale by the Company for stockholders other than Representative or its assignees (“Holder”) of all of the Holders) any shares of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a registration statement relating either Common Stock that may be exercised pursuant to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), the Company shall, at such time, promptly give each Holder written notice of such proposed registration. Upon the written request of each Holder given within twenty Representative’s Warrant (20“Registrable Securities”) days after mailing of such notice by the Company in accordance with Section 18(d) hereofapplicable Commission rules, regulations and interpretations so as to permit the Company shall, subject to the provisions resale of Section 8(c), endeavor to cause to be registered such Registrable Securities under the Act all of the Warrant Shares that each such Holder has requested to be registered.
(b) Whenever required under this Section 8(a) to effect the registration of any Warrant Shares, the Company shall, as expeditiously as reasonably possible use reasonable efforts to (i) file a registration statement (the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective Rule 415 under the Securities Act of 1933, as amended (the "Act") “Initial Registration Statement”). Such Initial Registration Statement shall contain the “Selling Stockholder” and “Plan of Distribution” sections in substantially the form as set forth in the Prospectus. The Company shall use its commercially reasonable efforts to have the Initial Registration Statement declared effective by the Commission as soon thereafter as reasonably practicable, but in no event later than the 120th day after the Initial Trading Date. The Company promptly shall provide each Holder with such copies of the final prospectus contained in the Registration Statement after it becomes effective as they shall reasonably request. In addition, the Company shall (a) use reasonable efforts to keep the Registration Statement effective (and the prospectus contained therein available for a period ending on use) pursuant to Rule 415 for resales by the earlier of (x) 120 days from its effective date or (y) when all such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") Holder on a timely continuous basis so long as each at all times until the date on which the Holder owns any Warrant Shares shall have sold all of the Registrable Securities. All expenses of the Company, other than sales or brokerage commissions and shall provide each Holder copies thereof when filed.
(c) Notwithstanding anything contained herein to the contraryfees and disbursements of counsel for, and other expenses of, the Company shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) orHolder, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delay.
(d) Each Holder shall (i) reasonably cooperate with the Company incurred in connection with the preparation and filing registrations, filings or qualifications of the Registration Statement Registrable Securities, including, without limitation, all registration, listing and execute qualifications fees, printers and deliver any agreements or instruments reasonably requested by the Company or its accounting fees, and fees and disbursements of counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereof.
(e) The Company Company, shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectus.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders).
Appears in 1 contract
Registration of Warrant Shares. (a) If (but without any obligation to do so) the Company proposes to register (including for this purpose a registration effected by the Company for stockholders other than the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), the The Company shall, at such timeits expense, promptly give each Holder written notice of such proposed registration. Upon (i) prepare and file with the written request of each Holder given Securities and Exchange Commission (the “Commission”) as soon as practicable, but in any event within twenty (20) 45 days after mailing of such notice by the Company in accordance with Section 18(dOriginal Issuance Date, a registration statement on Form S-3 (or any successor form) hereof, the Company shall, subject to the provisions of Section 8(c), endeavor to cause to be registered under the Act all covering the resale of the Warrant Shares that each such Holder has requested in an offering to be registered.
(b) Whenever required made on a continuous basis pursuant to Rule 415 under this Section 8(a) to effect the registration of any Warrant Shares, the Company shall, as expeditiously as reasonably possible use reasonable efforts to (i) file a registration statement Act (the "“Registration Statement"), registering for resale the Warrant Shares ”) and (ii) use its commercially reasonable efforts to cause the Registration Statement to be declared effective under within 120 days after the Securities Act of 1933, as amended (the "Act") as soon thereafter as reasonably practicableOriginal Issuance Date. The Company promptly shall provide each Holder with such copies of the final prospectus contained in the Registration Statement after it becomes effective as they shall reasonably request. In additionThereafter, the Company shall (a) use reasonable efforts promptly prepare and file with the Commission such amendments and supplements to the Registration Statement and the prospectus used in connection therewith as may be necessary to keep the Registration Statement effective for a period ending on and in compliance with applicable securities laws until the earlier date as of (x) 120 days from its effective date or (y) when which all such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed owned by it under the Securities Exchange Act of 1934, as amended ("Reports") on a timely basis so long as each Registered Holder owns any Warrant Shares and have been resold. The Company shall provide the Registration Statement (and each Holder copies thereof when filed.
amendment or supplement thereto, and each request for acceleration of effectiveness thereof) to MSW and its counsel for their review at least two (c2) Notwithstanding anything contained herein business days prior to the contrary, the Company shall be entitled to postpone the filing or other submission of the Registration Statement otherwise required to be prepared Statement. The Registered Holder and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any each holder of Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose included in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company such registration shall cooperate reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delay.
(d) Each Holder shall (i) reasonably cooperate with the Company in connection with such registration, including by furnishing to the preparation Company such information regarding such holder and filing the distribution proposed by such holder as the Company may reasonably request and as shall be required in connection with such registration. It shall not be a breach of this Section 7(a) if the Warrant Shares delivered upon exercise of this Warrant are not registered for resale provided that the Company shall have prepared and filed the Registration Statement by the deadline set forth above in clause (i) above and shall have used its commercially reasonable efforts to cause the Registration Statement to become effective by the deadline set forth above in clause (ii).
(b) In the event that (i) non-public material information regarding the Company exists, the immediate disclosure of which would be materially disadvantageous to the Company, (ii) the prospectus constituting a part of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes contains an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingtherein, in the light of the circumstances under which they were made there made, not misleading or (as determined by iii) an offering of the Warrant Shares would materially interfere with any proposed material acquisition, disposition or other similar corporate transaction involving the Company (each of the events or its counsel conditions referred to in its sole discretionclauses (i), forthwith (ii) and (iii), a “Suspension Condition”), then the Company may notify the Registered Holder and any other holders of Warrant Shares to such effect, and, upon receipt of such notice, the Registered Holder shall discontinue its disposition any sales of Warrant Shares pursuant to the Registration Statement, Statement until such time as such Holder (or any holders) have received a supplemented or amended prospectus from advised in writing by the Company relating theretothat sales may recommence. The Company agrees to use its best efforts to prepare any necessary amendments or supplements will as promptly as practicable provide written notice to the Registration Statement as soon as reasonably practicable after the same becomes necessary and Registered Holder when a Suspension Condition ceases to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereof.
(e) The Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or exist. Notwithstanding anything to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectus.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stockcontrary herein, the Company shall not be required exercise its rights under this Section 8(a7(b) to include any suspend sales of the Holders’ Warrant Shares more than two times in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company any 365-day period, and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number aggregate of such securities, including Warrant Shares, which the underwriters determine suspensions may not exceed a total of 40 days in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders)any 365-day period.
Appears in 1 contract
Samples: Common Stock Purchase Warrant (Distributed Energy Systems Corp)
Registration of Warrant Shares. (a) If (but without If, at any obligation time prior to do so) the Company proposes to register (including for this purpose a registration effected by close of business on the Company for stockholders other than [ ] anniversary of the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a Effective Date, there is no registration statement relating either to in effect for the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction)Warrant Shares, the Company shallCompany, at such time, promptly give each Holder written notice of such proposed registration. Upon upon the written request of each Holder given within twenty (20) days after mailing holders of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions Warrants and of Section 8(c), endeavor to cause to be registered under the Act all Warrant Shares representing an aggregate of 50% or more of the Warrant Shares, will file with the Securities and Exchange Commission under the Securities Act, such registration statements and amendments thereto and such other filings as may be required to permit the public offering and sale of such Warrant Shares that each such Holder has requested in compliance with the Securities Act. The Company shall be required to be registeredregister Warrant Shares no more than once pursuant to this Section 5.01(a).
(b) Whenever required under The Company will permit, subject to the last sentence of this Section 8(a) 5.01(b), any Warrant Shares to effect be included, at the registration request of any the holders of such Warrant Shares, in any registration of securities of the Company shall, as expeditiously as reasonably possible use reasonable efforts to (iother than shares of Common Stock for an employees' option or stock purchase plan or shares registered on Form S-4 in connection with an arms-length merger transaction) file under a registration statement (filed by the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective Company under the Securities Act at any time prior to the close of 1933, as amended (business on the "Act") as soon thereafter as reasonably practicable[ ] anniversary of the Effective Date. The Company promptly shall provide written notice to the record holders of all Warrants and Warrant Shares at least 30 days prior to the filing of any such registration statement sent by registered mail to the address of record of each Holder with such copies holder. If the offering pursuant to any registration statement described in this Section 5.01(b) is made through underwriters and the managing underwriter of such offering shall advise the Company in writing that, in its opinion, the distribution of the final prospectus contained number of Warrant Shares requested to be included in the Registration Statement after it becomes effective as they shall reasonably request. In addition, registration concurrently with the securities being registered by the Company would materially and adversely affect the distribution of such securities by the Company, then all selling security holders (but not the Company) shall (a) use reasonable efforts reduce the amount of securities each intended to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all distribute through such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") offering on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filedpro rata basis.
(c) Notwithstanding anything contained herein Each such holder shall pay the underwriting discount attributable to such holder's Warrant Shares, any transfer tax payable with respect thereto and the contrary, the Company fees and expenses of such holder's counsel. All other expenses of registration under Section 5.01(a) or Section 5.01(b) shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided borne by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous DelayCompany.
(d) Each Holder shall (i) reasonably cooperate The Company will agree to indemnify the holders of Warrant Shares that are included in a registration statement or amendments to existing registration statements pursuant to this Section 5.01 substantially to the same extent as the Company has agreed to indemnify the Underwriters in the Underwriting Agreement and such holders will agree to indemnify the Company and any underwriter with respect to information furnished by them in writing to the Company for inclusion therein substantially to the same extent as the Underwriters have indemnified the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereofUnderwriting Agreement.
(e) The If the offering pursuant to any registration statement provided for herein is made through underwriters, the Company shall indemnify will enter into an underwriting agreement in customary form and hold harmless indemnify, in customary form, such underwriters and each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each person who controls any such underwriter within the meaning of the foregoingSecurities Act. Such underwriting agreement shall contain provisions for the indemnification of the Company in customary form, a "Holder Indemnitee") who is or provided that the aggregate amount that may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising recovered from any actual or alleged misrepresentation or misstatement of facts or omission such underwriter pursuant to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or such provisions shall be limited to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred total price at which the Warrant Shares purchased by any such Holder Indemnitee in connection with underwriter under such claim, action, suit or proceeding or the defense thereof, except underwriting agreement were offered to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectuspublic.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders).
Appears in 1 contract
Samples: Warrant Agreement (American Home Mortgage Investment Corp)
Registration of Warrant Shares. (a) If (but without The Company shall not be required to issue or deliver any obligation certificate for its shares of Common Stock purchased upon the exercise of this Warrant Agreement prior to do so) the Company proposes to register (including for this purpose a registration effected by the Company for stockholders other than the Holders) any of its stock or other securities under the Act in connection with the public offering admission of such securities solely for cash (shares to listing on any stock exchange on which shares of the Company’s Common Stock may at that time be listed. In the event of the exercise of this Warrant Agreement with respect to any shares subject hereto, if other than a registration statement relating either to the sale shares of securities to employees Common Stock of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction)are then listed, the Company shall, shall make prompt application for such listing with respect to the shares acquired upon the exercise hereof. If at such time, promptly give each Holder written notice of such proposed registration. Upon any time during the written request of each Holder given within twenty (20) days after mailing of such notice by Warrant Agreement period the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions shall be advised by its counsel that shares deliverable upon exercise of Section 8(c), endeavor to cause Warrants are required to be registered under the Act all of the Warrant Shares that each such Holder has requested to be registered.
(b) Whenever required under this Section 8(a) to effect the registration of any Warrant Shares, the Company shall, as expeditiously as reasonably possible use reasonable efforts to (i) file a registration statement (the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective under the Federal Securities Act of 1933, as amended (the "Act") as soon thereafter as reasonably practicable. The Company promptly shall provide each Holder with such copies amended, or that delivery of the final shares must be accompanied or preceded by a prospectus contained in meeting the Registration Statement after it becomes effective as they shall reasonably request. In additionrequirements of the Act, the Company shall (a) will use reasonable efforts to keep effect such registration or provide such prospectus not later than a reasonable time following each exercise of this Warrant Agreement, but delivery of shares by the Registration Statement effective for Company may be deferred until registration is effected or a period ending on prospectus available. The Company shall be under no obligation to register the earlier shares deliverable upon exercise of (x) 120 days from this Warrant Agreement unless it shall be advised by its effective date or (y) when all counsel that such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms shares are required to be filed so registered. The Holder shall have no interest in the shares covered by it under this Warrant Agreement unless and until certificates for the Securities Exchange Act shares are issued following the exercise of 1934, as amended ("Reports") on a timely basis so long as each Holder owns any this Warrant Shares and shall provide each Holder copies thereof when filed.
(c) Agreement. Notwithstanding anything contained herein to the contrarycontrary in this Warrant Agreement, in lieu of affecting the registration statement described in the preceding sentence, the Company shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) ormay, in the event the Registration Statement has been declared effectivealternative, without suspending such effectiveness, instruct provide the Holder promptly with a cash payment in writing (or any subsequent holders thereof) not to sell or distribute any consideration of the Warrant Shares (a "Delay") as long as subject to such exercise in an amount equal to the reason for non-disclosure continuesexcess of the Fair Market Value of one share of Common Stock over the Exercise Price, if multiplied by the number of Warrant Shares subject to such exercise, and the Company would be required to disclose in the Registration Statement the existence shall have no further liability of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes kind to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, Holder with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delay.
(d) Each Holder shall (i) reasonably cooperate with the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereof.
(e) The Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectus.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders).
Appears in 1 contract
Samples: Warrant Agreement (RBC Bearings INC)
Registration of Warrant Shares. (a) If (but without any obligation to do so) Upon the Company proposes to register (including for this purpose a registration effected receipt by the Company for stockholders other than at any time during the Holders) any Exercise Period of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), the Company shall, at such time, promptly give each Holder written notice of such proposed registration. Upon the written request of each Holder given within twenty (20) days after mailing registered holders of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions Warrants and of Section 8(c), endeavor to cause to be registered under the Act all Warrant Shares representing an aggregate of 25% or more of the Warrant Shares that each such Holder has requested to be registered.
(b) Whenever required under this Section 8(a) to effect the registration of any Warrant Shares, the Company shall, as expeditiously as reasonably possible use reasonable efforts to (i) shall file a registration statement with the U.S. Securities and Exchange Commission (the "Registration StatementCommission"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective under the Securities Act of 1933, as amended (the "Securities Act") ), such registration statements and amendments thereto and such other filings as soon thereafter as reasonably practicablemay be required to permit the public offering and sale of such Warrant Shares in compliance with the Securities Act. The Company promptly shall provide each Holder with be required to register Warrant Shares no more than once pursuant to this Section 5.01(a). If the offering pursuant to any registration statement described in this Section 5.01(a) is made through underwriters and the managing underwriter of such copies offering shall advise the Company in writing that, in its opinion, the distribution of the final prospectus contained number of Warrant Shares requested to be included in the Registration Statement after it becomes effective as they shall reasonably request. In addition, registration concurrently with any securities being registered by the Company or other holders of the Company's securities with the right to request inclusion in such offering would materially and adversely affect the distribution of such securities by the Company, including with respect to the price at which the shares can be sold, then priority for including shares of Common Stock in the offering, up to the number advised by the managing underwriter, shall (a) use reasonable efforts be allocated first, to keep the Registration Statement effective for a period ending on the earlier each person who has requested inclusion of (x) 120 days from its effective date or (y) when all such Warrant Shares can pursuant to the "demand" registration right set forth in this Section 5.01(a), pro rata in proportion to the respective number of Warrant Shares to be sold without limitation included by them, and second, to the extent of any remaining capacity as advised by the managing underwriter, to the Company and to each other person who has requested inclusion of shares of Common Stock (including Warrant Shares) pursuant to a "piggyback" registration right, pro rata in proportion to the respective number of shares of Common Stock to be included by them. Such "demand" registration right shall not have a duration of more than five years from the date of effectiveness or delay under Rule 144 and the commencement of sales of the Offering. Warrantholders shall have no more than one such "demand" registration right, whether at the Company's expense or otherwise.
(b) file all reports and forms required The Company will permit, subject to the last sentence of this Section 5.01(b), any Warrant Shares to be included, at the request of the holders of such Warrant Shares, in any registration of shares of Common Stock of the Company (other than shares of Common Stock for a stock option or stock purchase plan or shares registered on Form S-4 in connection with an arms-length merger transaction) under a registration statement filed by it the Company under the Securities Exchange Act at any time during the Exercise Period. The Company shall provide written notice to the record holders of 1934, as amended ("Reports") on a timely basis so long as each Holder owns any all Warrants and Warrant Shares at least 15 days prior to the filing of any such registration statement sent by registered mail to the address of record of each such holder. If the offering pursuant to any registration statement described in this Section 5.01(b) is made through underwriters and the managing underwriter of such offering shall provide advise the Company in writing that, in its opinion, the distribution of the number of Warrant Shares requested to be included in the registration concurrently with the securities being registered by the Company would materially and adversely affect the distribution of such securities by the Company, including with respect to the price at which the shares can be sold, then priority for including shares of Common Stock in the offering, up to the number advised by the managing underwriter, shall be allocated first, to the Company and each Holder copies thereof when filedother person who has requested inclusion of shares of Common Stock pursuant to a "demand" registration right, pro rata in proportion to the respective number of shares of Common Stock to be included by them, and second, to the extent of any remaining capacity as advised by the managing underwriter, to each other person who has requested inclusion of shares of Common Stock (including Warrant Shares) pursuant to a "piggyback" registration right, pro rata in proportion to the respective number of shares of Common Stock to be included by them. Such "piggyback" registration right shall not have a duration of more than seven years from the date of effectiveness or the commencement of sales of the Offering.
(c) Notwithstanding anything contained herein In any registration of Common Stock initiated by the Company or by any person having "demand" registration rights in which Warrantholders request inclusion of Warrant Shares pursuant to Section 5.01(b), if at any time after giving notice of its intention to register securities and prior to the contraryeffective date of the applicable registration statement the Company or such other person shall determine for any reason not to register or to delay registration of it securities, the Company may, at its election, give written notice of such determination to each Warrantholder that has requested inclusion of Warrant Shares in the registration statement and (x) in the case of a determination not to register, shall be entitled relieved of its obligation to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute register any Warrant Shares in connection with such registration and (y) in the case of a "Delay") as long determination to delay registering, shall be permitted to delay registering any Warrant Shares for the same period as the reason for non-disclosure continues, if the Company would be required to disclose delay in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at registering such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delayother securities.
(d) Each Holder shall If (i) reasonably cooperate with at any time when a prospectus relating to Warrant Shares is required to be delivered under the Securities Act, the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery discovers that, or upon the happening of any event occurs as a result of which, the Registration Statement prospectus (or including any prospectus supplement thereto) included therein)in any registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingtherein, in the light of the circumstances under which they were made made, not misleading, or (as determined by ii) the Commission issues any stop order suspending the effectiveness of any registration statement or proceedings are initiated or threatened for that purpose, then the Company or its counsel shall promptly deliver a written notice to such effect to each Warrantholder whose Warrant Shares are included in its sole discretion)such registration statement, forthwith and each such Warrantholder shall immediately upon receipt of such notice discontinue its disposition of Warrant Shares pursuant to such registration statement until its receipt of the Registration Statement, until such time as such Holder (or any holders) have received a copies of the supplemented or amended prospectus from contemplated by the immediately following sentence and, if so directed by the Company, shall deliver to the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements destroy (with such destruction certified in writing to the Registration Statement as soon as reasonably practicable after Company) at the same becomes necessary and Company's expense all copies, other than permanent file copies, then in such Warrantholder's possession of the prospectus or prospectus supplement relating to provide to each Holder quantities such Warrant Shares current at the time of receipt of such amendments notice. As promptly as practicable following the event or supplements reasonably sufficient for discovery referred to in clause (i) of the distribution thereofimmediately preceding sentence, the Company shall prepare and furnish to the Warrantholders whose Warrant Shares are included in such registration statement a reasonable number of copies of an amendment or supplement of such prospectus so that, as thereafter delivered to purchasers of such Warrant Shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(e) The Notwithstanding anything to the contrary in this Article V, if the filing or maintenance of any registration statement would require the Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleadinga disclosure that would, in the Registration Statement reasonable judgment of the Company's Board of Directors, have a material adverse effect on the business, operations, properties, prospects or financial condition of the Company or on pending or imminent transactions, the Company shall have the right, exercisable for a period not to exceed in the aggregate 45 consecutive calendar days in any period of twelve consecutive months (the "Blackout Period") upon written notice to the Warrantholders, to delay the filing of any registration statement or of any amendment thereto, to suspend its obligation to maintain the effectiveness of any registration statement and to suspend the use of any prospectus or prospectus supplement thereto or to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, any registration statement. Each Warrantholder agrees that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account upon receipt of any such Loss arising notice from the sale Company, it shall immediately cease all efforts to dispose of Warrant Shares pursuant to such registration statement until such time as the Company shall notify it of the Warrant Shares by end of such Holder Indemnitee to any person restrictions or, if a copy earlier, the expiration of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectusBlackout Period.
(f) In connection Each such holder shall pay the underwriting discount attributable to such holder's Warrant Shares, any transfer tax payable with any offering involving an underwriting respect thereto and the fees and expenses of shares such holder's counsel. All other expenses of registration under Section 5.01(a), or Section 5.01(b) shall be borne by the Company’s capital stock.
(g) The Company will agree to indemnify the holders of Warrant Shares that are included in a registration statement or amendments to existing registration statements pursuant to this Section 5.01 substantially to the same extent as the Company has agreed to indemnify the Underwriters in the Underwriting Agreement and such holders will agree to indemnify the Company and any underwriter with respect to information furnished by them in writing to the Company for inclusion therein substantially to the same extent as the Underwriters have indemnified the Company in the Underwriting Agreement.
(h) If the offering pursuant to any registration statement provided for herein is made through underwriters, the Company will enter into an underwriting agreement in customary form and indemnify, in customary form, such underwriters and each person who controls any such underwriter within the meaning of the Securities Act. Such underwriting agreement shall contain provisions for the indemnification of the Company in customary form, provided that the aggregate amount that may be recovered from any such underwriter pursuant to such provisions shall not be required under Section 8(a) exceed the underwriting discounts and commissions applicable to include any of the Holders’ Warrant Shares in purchased by any such underwriter under such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders)agreement.
Appears in 1 contract
Registration of Warrant Shares. (a) If (but without If, at any obligation time following the date hereof and prior to do so) the Company proposes to register (including for this purpose a registration effected by close of business on the Company for stockholders other than fifth anniversary of the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a Effective Date, there is no registration statement relating either to in effect for the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction)Warrant Shares, the Company shallCompany, at such time, promptly give each Holder written notice of such proposed registration. Upon upon the written request of each Holder given within twenty (20) days after mailing holders of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions Warrants and of Section 8(c), endeavor to cause to be registered under the Act all Warrant Shares representing an aggregate of 51% or more of the Warrant Shares, will file with the Securities and Exchange Commission under the Securities Act, such registration statements and amendments thereto and such other filings as may be required to permit the public offering and sale of such Warrant Shares that each such Holder has requested in compliance with the Securities Act. The Company shall be required to be registeredregister Warrant Shares no more than once pursuant to this Section 5.01(a).
(b) Whenever required under To the extent a registration statement covering the Warrant Shares is not available, the Company will permit, subject to the last sentence of this Section 8(a) 5.01(b), any Warrant Shares to effect be included, at the registration request of any the holders of such Warrant Shares, in any registration of securities of the Company shall, as expeditiously as reasonably possible use reasonable efforts to (iother than shares of Common Stock for an employees' option or stock purchase plan or shares registered on Form S-4 in connection with an arms-length merger transaction) file under a registration statement (filed by the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective Company under the Securities Act at any time prior to the close of 1933, as amended (business on the "Act") as soon thereafter as reasonably practicablefifth anniversary of the Effective Date. The Company promptly shall provide written notice to the record holders of all Warrants and Warrant Shares at least 30 days prior to the filing of any such registration statement sent by registered mail to the address of record of each Holder with such copies holder. If the offering pursuant to any registration statement described in this Section 5.01(b) is made through underwriters and the managing underwriter of such offering shall advise the Company in writing that, in its opinion, the distribution of the final prospectus contained number of Warrant Shares requested to be included in the Registration Statement after it becomes effective as they shall reasonably request. In addition, registration concurrently with the securities being registered by the Company would materially and adversely affect the distribution of such securities by the Company, then all selling security holders (but not the Company) shall (a) use reasonable efforts reduce the amount of securities each intended to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all distribute through such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") offering on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filedpro rata basis.
(c) Notwithstanding anything contained herein Each such holder shall pay the underwriting discount attributable to such holder's Warrant Shares, any transfer tax payable with respect thereto and the contraryfees and expenses of such holder's counsel. All other expenses of registration under Section 5.01(a), the Company or Section 5.01(b) shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided borne by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous DelayCompany.
(d) Each Holder If the offering pursuant to any registration statement provided for herein is made through underwriters, the Company will enter into an underwriting agreement in customary form and indemnify, in customary form, such underwriters and each person who controls any such underwriter within the meaning of the Securities Act. Such underwriting agreement shall (i) reasonably cooperate with contain provisions for the indemnification of the Company in connection with customary form, provided that the preparation and filing of aggregate amount that may be recovered from any such underwriter pursuant to such provisions shall be limited to the Registration Statement and execute and deliver any agreements or instruments reasonably requested by total price at which the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereof.
(e) The Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred purchased by any such Holder Indemnitee in connection with underwriter under such claim, action, suit or proceeding or the defense thereof, except underwriting agreement were offered to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectuspublic.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders).
Appears in 1 contract
Registration of Warrant Shares. (a) If (but without any obligation to do so) the The Company proposes to register (including for this purpose a registration effected by the Company for stockholders other than the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), the Company shall, at such time, promptly give each Holder written notice of such proposed registration. Upon the written request of each Holder given within twenty (20) days after mailing of such notice by the Company in accordance with Section 18(d) hereof, the Company shallwill permit, subject to the provisions last sentence of this Section 8(c5.01(a), endeavor to cause any Warrant Shares to be included, at the request of the holders of such Warrant Shares, in any registration of securities of the Company (other than Common Shares for an employees' option or stock purchase plan or shares registered on Form S-4 in connection with an arms-length merger transaction) under a registration statement filed by the Company under the Securities Act all at any time prior to the close of business on the seventh anniversary of the Effective Date. The Company shall provide written notice to the record holders of all Warrants and Warrant Shares that at least thirty (30) days prior to the filing of any such registration statement sent by registered mail to the address of record of each such Holder has holder. If the offering pursuant to any registration statement described in this Section 5.01(a) is made through underwriters and the managing underwriter of such offering shall advise the Company in writing that, in its opinion, the distribution of the number of Warrant Shares requested to be registeredincluded in the registration concurrently with the securities being registered by the Company would materially and adversely affect the distribution of such securities by the Company, then all selling security holders (but not the Company) shall reduce the amount of securities each intended to distribute through such offering on a pro rata basis.
(b) Whenever required under this Section 8(a) Each such holder shall pay the underwriting discount attributable to effect the registration of any such holder's Warrant Shares, any transfer tax payable with respect thereto and the Company shall, as expeditiously as reasonably possible use reasonable efforts to (ifees and expenses of such holder's counsel. All other expenses of registration under Section 5.01(a) file a registration statement (shall be borne by the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective under the Securities Act of 1933, as amended (the "Act") as soon thereafter as reasonably practicable. The Company promptly shall provide each Holder with such copies of the final prospectus contained in the Registration Statement after it becomes effective as they shall reasonably request. In addition, the Company shall (a) use reasonable efforts to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filedCompany.
(c) Notwithstanding anything contained herein The Company will agree to indemnify the holders of Warrant Shares that are included in a registration statement or amendments to existing registration statements pursuant to this Section 5.01 substantially to the contrary, the Company shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") same extent as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, agreed to indemnify the Underwriters in each case, that the Underwriting Agreement and such holders will agree to indemnify the Company reasonably determines is and any underwriter with respect to information furnished by them in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes writing to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related for inclusion therein substantially to the Company (rather than disclosure required to be provided by same extent as the holders), Underwriters have indemnified the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delayin the Underwriting Agreement.
(d) Each Holder If the offering pursuant to any registration statement provided for herein is made through underwriters, the Company will enter into an underwriting agreement in customary form and indemnify, in customary form, such underwriters and each person who controls any such underwriter within the meaning of the Securities Act. Such underwriting agreement shall (i) reasonably cooperate with contain provisions for the indemnification of the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereofcustomary form.
(e) The Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectus.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders).
Appears in 1 contract
Samples: Warrant Agreement (American Mortgage Acceptance Co)
Registration of Warrant Shares. (a) If (but without any obligation On or prior to do so) the 30th day following the Closing, the Company proposes to register (including for this purpose a registration effected by the Company for stockholders other than the Holders) any of its stock or other securities under the Act in connection shall prepare and file with the public offering of such securities solely for cash (other than Commission a registration statement relating either to (“Resale Registration Statement”) covering the sale resale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), the Company shall, at such time, promptly give each Holder written notice of such proposed registration. Upon the written request of each Holder given within twenty (20) days after mailing of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions of Section 8(c), endeavor to cause to be registered under the Act all of the Warrant Shares that each such Holder has requested for an offering to be registered.
(b) Whenever required made on a continuous basis pursuant to Rule 415 under this Section 8(a) to effect the registration of any Warrant Shares, the Securities Act. The Resale Registration Statement filed hereunder shall be on Form S-3. The Company shall, as expeditiously as reasonably possible shall use reasonable its best efforts to (i) file a registration statement (the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the such Resale Registration Statement to be declared effective under the Securities Act of 1933as promptly as possible after the filing thereof, as amended and shall use its best efforts to keep such Resale Registration Statement continuously effective under the Securities Act until all Warrant Shares covered by such Resale Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the "Act") as soon thereafter as reasonably practicable. The requirement for the Company promptly shall provide each Holder to be in compliance with such copies the current public information requirement under Rule 144 (assuming cashless exercise of the final prospectus contained in Warrant). At least 2 Trading Days prior to filing the Resale Registration Statement after it becomes effective as they shall reasonably request. In additionStatement, the Company shall (a) use reasonable efforts to keep have provided the Holder a copy of the Resale Registration Statement effective for a period ending on its review and incorporated any comments reasonably provided by the earlier of (x) 120 days from its effective date or (y) when all such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filed.
(c) Holder. Notwithstanding anything contained herein to the contrary, to the Company extent that the Resale Registration Statement is not filed within 30 days of the Closing, is not declared effective within 90 days of the Closing or is suspended for any reason thereafter during the term of the Warrant, the term of the Warrant shall be entitled to postpone extended by an equivalent number of days past such deadlines that the filing of the Resale Registration Statement otherwise required to be prepared is not filed or effective, as applicable, and filed by it in accordance with subparagraph (b) or, in no event shall the event the Warrant terminate on a date where there is no effective Resale Registration Statement has been declared effective, without suspending such effectiveness, instruct available for the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delay.
(d) Each Holder shall (i) reasonably cooperate with the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition sale of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereof.
(e) The Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectusHolder.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders).
Appears in 1 contract
Samples: Stock Purchase Agreement (Northwest Biotherapeutics Inc)
Registration of Warrant Shares. The Company agrees:
(a) If to use its best efforts to as soon as practicable, but not more than ten (but without any obligation to do so10) business days after the Company proposes to register later of (including for this purpose a registration effected i) receipt and acceptance by the Company for stockholders other than of EXHIBIT C, properly completed and executed, reflecting the Holders) any assignment of its stock the Warrant, or other securities under the Act in connection with the public offering of such securities solely for cash (other than a registration statement relating either portions thereof, to the sale preferred shareholders of securities to employees of the Company pursuant to a stock option, stock purchase International Isotopes Inc. (the"I3 PREFERRED SHAREHOLDERS") or similar plan or a SEC Rule 145 transaction), the Company shall, at such time, promptly give each Holder written notice of such proposed registration. Upon the written request of each Holder given within twenty (20ii) days after mailing of such notice receipt and acceptance by the Company of EXHIBITS B AND D, properly completed and executed, from individual I3 Preferred Shareholders in accordance with Section 18(d) hereof, the Company shall, subject to the provisions of Section 8(c), endeavor to cause to be registered under the Act all aggregate constituting at least 85% of the Warrant Shares that each such Holder has requested total number of I3 Preferred Shareholders, to be registered.
(b) Whenever required under this Section 8(a) to effect prepare and file with the registration of any Warrant Shares, the Company shall, as expeditiously as reasonably possible use reasonable efforts to (i) file Commission a registration statement (the "Registration StatementREGISTRATION STATEMENT"), registering for resale ) relating to the sale of the Warrant Shares and by the Holder from time to time on the Nasdaq National Market (iior the facilities of any national securities exchange on which the Company's Common Stock is then traded) or in privately negotiated transactions;
(b) to use its best efforts, subject to receipt of necessary information from the Holder, to cause the Commission to notify the Company of the Commission's willingness to declare the Registration Statement to be declared effective under the Securities Act of 1933, as amended within ninety (the "Act"90) as soon thereafter as reasonably practicable. The Company promptly shall provide each Holder with such copies of the final prospectus contained in days after the Registration Statement after it becomes effective is filed with the Commission;
(c) to use its best efforts to prepare and file with the Commission such amendments and supplements to the Registration Statement and the Prospectus filed as they shall reasonably request. In additionpart thereof and take such other action, the Company shall (a) use reasonable efforts if any, as may be necessary to keep the Registration Statement effective for a period ending on until the earlier of (xi) 120 days from its two years after the effective date of the Registration Statement, (ii) the date on which the Warrant Shares may be resold by the Holder without registration or without regard to any volume limitations by reason of Rule 144 under the Securities Act or any other rule of similar effect, or (yiii) when all such of the Warrant Shares can be have been sold without limitation pursuant to the Registration Statement or delay under Rule 144 under the Securities Act or any other rule of similar effect;
(d) to furnish to the Holder with respect to the Warrant Shares registered under the Registration Statement such reasonable number of copies of the Prospectus, including any supplements to or amendments of the Prospectus, in order to facilitate the public sale or other disposition of all or any of the Warrant Shares by the Holder; provided however, that the obligation of the Company to deliver copies of the Prospectus to the Purchaser shall be subject to the receipt by the Company of reasonable assurances from the Holder that the Holder will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of the Prospectus;
(be) file all reports and forms during the period when copies of the Prospectus are required to be filed by it delivered under the Securities Act or the Securities Exchange Act of 1934, as amended (the "ReportsEXCHANGE ACT") on a timely basis so long as each Holder owns any Warrant Shares ), to file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and shall provide each Holder copies thereof when filed.the rules and regulations promulgated thereunder;
(cf) Notwithstanding anything contained herein to use its best efforts to file documents required of the contraryCompany for customary Blue Sky clearance in states specified in writing by the Holder; provided, however, that the Company shall not be entitled required to postpone qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented, and to file the filing documents necessary to list the Warrant Shares on the Nasdaq Stock Market;
(g) to bear all expenses in connection with the procedures in paragraphs (a) through (f) of this Section 7.2 and the registration of the Warrant Shares pursuant to the Registration Statement, other than any fees and expenses of counsel or other advisers to the Holder, brokerage fees and commissions incurred by the Holder;
(h) to comply with the provisions of the Securities Act with respect to the disposition of all Warrant Shares covered by the Registration Statement in accordance with the intended methods of distribution by the Holder as set forth in the Registration Statement;
(i) to notify the Holder, if the Holder has registered Warrant Shares in the Registration Statement which remain unsold, (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement otherwise required for amendments or supplements to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effectiveor related prospectus or for additional information relating to the Registration Statement, without suspending such effectiveness, instruct (iii) of the Holder promptly in writing (issuance by the Commission or any subsequent holders thereof) not to sell other federal or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence state governmental authority of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that stop order suspending the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delay.
(d) Each Holder shall (i) reasonably cooperate with the Company in connection with the preparation and filing effectiveness of the Registration Statement and execute and deliver or the initiation of any agreements or instruments reasonably requested proceedings for that purpose, (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or its counsel exemption from qualification of any of the Warrant Shares for sale in connection therewith and any jurisdiction or the initiation of any proceeding for such purpose, (iiv) upon discovery that, or upon of the happening of any event as a result of which, which makes any statement made in the Registration Statement (or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which requires the making of any changes in the Registration Statement or prospectus included therein)so that, as then in effectthe case of the Registration Statement, includes an it will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or under which such statement was made, not misleading, and (vi) of the Company's reasonable determination that a post-effective amendment to the Registration Statement would be appropriate;
(j) to use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Warrant Shares for sale in any jurisdiction; and
(k) upon the occurrence of any event contemplated by Section 7.2(i)(v) or 7.2(i)(vi) above, to prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Warrant Shares being sold thereunder, such prospectus will not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingtherein, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion)made, forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereofnot misleading.
(e) The Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectus.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders).
Appears in 1 contract
Registration of Warrant Shares. As soon as reasonably practicable after the Commencement Date, but in any event no later than forty-five (45) days after the Commencement Date (the “Filing Date”), the Company will prepare, and file with the SEC a registration statement under the 1933 Act or an amendment to a registration statement previously filed by the Company with the SEC on such form as may be available to the Company to effect the registration hereby, such registration statement (or amendment thereto) and the prospectus included therein being referred to as the “Registration Statement”) for resale of the Warrant Shares (the “Registrable Securities”). Xxxxxx acknowledges and agrees that the Company may include in the Registration Statement securities to be sold on behalf of other parties. In connection with the Registration Statement, the Company shall:
(a) If prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the 1933 Act with respect to the disposition of the Registrable Securities;
(but without b) furnish such number of the Registration Statement and prospectuses and other documents incident thereto, including any obligation amendment of or supplement to do sothe prospectus, as the Holder may from time to time reasonably request;
(c) furnish to the Holder copies of any comments that the SEC provides in writing to the Company proposes pertaining to register (including for this purpose a registration effected by the Registration Statement, and any responses thereto from the Company to the SEC, in each case that pertain to the Holder as a selling shareholder or to the “Plan of Distribution” section, but not information which the Corporation believes would constitute material and nonpublic information;
(d) promptly provide notice to the Holder when the Registration Statement or any post-effective amendment thereto the same has become effective;
(e) use its commercially reasonable efforts to qualify the Registrable Securities for stockholders other than the Holders) any of its stock or offer and sale under such other securities under or blue sky laws of such jurisdictions in the Act United States as the Holder reasonably requests;
(f) use its commercially reasonable efforts to cause all such Registrable Securities to be initially listed on The NYSE Amex Exchange or any other applicable securities exchange or quoted on each inter-dealer quotation system on which the Company’s common stock is then listed or quoted; and
(g) pay all expenses incurred in connection with such registration, including but not limited to, registration and filing fees with the SEC, fees and expenses of compliance with securities or blue sky laws and fees and expenses incurred in connection with the public offering of such securities solely for cash (other than a registration statement relating either to the sale of securities to employees listing or quotation of the Registrable Securities. The Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), the Company shall, at such time, promptly give each Holder written notice of such proposed registration. Upon the written request of each Holder given within twenty (20) days after mailing of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions of Section 8(c), endeavor to cause to be registered under the Act all of the Warrant Shares that each such Holder has requested to be registered.
(b) Whenever required under this Section 8(a) to effect the registration of any Warrant Shares, the Company shall, as expeditiously as reasonably possible shall use commercially reasonable efforts to have the Registration Statement declared effective under the 1933 Act as promptly as practicable after filing thereof with the SEC, but in no event later than (i) file a registration statement (120 days after the "Filing Date in the event that the SEC has notified the Company that it will not review the Registration Statement"), registering for resale the Warrant Shares and Statement or (ii) 150 days after the Filing Date in the event that the SEC has notified the Company that it will review the Registration Statement (the date under either (i) or (ii) is referred to as the “Effective Date”). The Company shall use commercially reasonable efforts to cause the Registration Statement to continue to be declared effective under until the Securities Act earlier to occur of 1933, as amended (A) the "Act") as soon thereafter as reasonably practicable. The Company promptly shall provide each Holder with such copies second anniversary of the final prospectus contained in Commencement Date and (B) the date that the Holder has either disposed of or has the ability to dispose of all the Registrable Securities within a single three month period pursuant to Rule 144 of the 1933 Act (“Registration Statement Effective Period”), and, during such period, to cause the Registration Statement and the prospectus contained therein to be updated as reasonably deemed necessary by the Company to enable the Holder to resell the Registrable Securities. If at any time during the Registration Statement Effective Period there is not an effective registration statement covering all of the Registrable Securities and the Company shall determine to prepare and file with the SEC a registration statement relating to an offering for its own account or the account of others under the 1933 Act of any of its equity securities, other than on Form S-4 or Form S-8 (each as promulgated under the 1933 Act) or their then equivalents relating to equity securities to be issued solely in connection with any acquisition of any entity or business or equity securities issuable in connection with the stock option or other employee benefit plans, then the Company shall send to Holder a written notice of such determination and, if within five (5) business days after it becomes effective as they the date of such notice, Holder shall reasonably request. In additionso request in writing, the Company shall (a) use reasonable efforts include in such registration statement all or any part of such Registrable Securities Holder requests to keep be registered; provided, however, that, the Registration Statement effective Company shall not be required to register any Registrable Securities pursuant to this Section 8 that are eligible for a period ending on the earlier of (x) 120 days from its effective date or (y) when all such Warrant Shares can be sold resale without limitation or delay under regard to volume limitations pursuant to Rule 144 promulgated under the 1933 Act or that are the subject of a then effective registration statement; provided further, that it shall be a condition to the inclusion of such Registrable Securities on such registration statement that Holder agrees to the same terms and conditions regarding method of sale applicable to the securities otherwise being sold through such registration. Promptly upon any registration statement filed pursuant to this Section 8 being declared effective by the SEC, the Company will file a related form of final prospectus pursuant to Rule 424(b) promulgated under the 1933 Act. Holder agrees to indemnify the Company, the Company’s officers, directors, employees, and agents, and each underwriter and selling broker, if any, and each person and/or entity, if any, who controls or is controlled by the Company, against liability (b) file all reports including liability under the 1933 Act and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports"the “1934 Act”) on a timely basis so long as each arising by reason of any breach of any representation, warranty, or covenant made by Holder owns in this Warrant and/or any Warrant Shares and shall provide each Holder copies thereof when filed.
(c) Notwithstanding anything statement contained herein to the contrary, the Company shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each caseStatement, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes Xxxxxx provided to the Company in writing information explicitly for use in the Registration Statement, being false or misleading or omitting to state a material fact necessary to be stated in order that may the statements made in the Registration Statement, in the circumstances in which they are made, not be misleading; provided that in no event will the aggregate amount Holder is required to prepare pay pursuant to such indemnification obligations exceed the disclosure required greater of the aggregate purchase price paid by Items 507 Holder hereunder and 508 the amount of Regulation S-B the net proceeds received by Xxxxxx upon the sale of the Registrable Securities giving rise to such indemnification obligation. The Company hereby agrees to indemnify Holder, its officers and directors, and each person, if any, who controls the Holder against liability (including liability under the 1933 Act and the 1934 Act) arising by reason of (i) any statement (other than a statement provided by Xxxxxx as described above) in or incorporated by reference in the Registration Statement being false or misleading or omitting to state a material fact necessary to be stated in order that the statements made in or incorporated by reference in the Registration Statement, in the circumstances in which they are made, not be misleading, (ii) any violation by the Company of the 1933 Act, the 1934 Act, any state securities laws or any rule or regulation promulgated under the 1933 Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delay.
(d) Each Holder shall (i) reasonably cooperate with the Company 1934 Act or any state securities laws in connection with the preparation and filing Registration Statement, or (iii) any breach of the Registration Statement and execute and deliver any agreements or instruments reasonably requested covenant made by the Company in this Warrant. If a claim for indemnification under this Section 8 is unavailable (by reason of public policy or its counsel otherwise) or insufficient to hold harmless an indemnified party in connection therewith and (ii) upon discovery that, or upon the happening respect of any event losses referred to herein, then each indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of whichsuch losses, in such proportion as is appropriate to reflect the Registration Statement (relative fault of the indemnifying party and indemnified party as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or any prospectus included therein), as then in effect, includes an alleged untrue statement of a material fact or omits omission or alleged omission of a material fact, was taken or made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any losses shall be deemed to include, subject to the limitations set forth herein, any reasonable attorneys’ or other reasonable fees or expenses incurred by such party in connection with any proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for herein was available to such party in accordance with its terms. Upon receipt of a notice (a “Suspension Notice”) from the Company of the happening of any event that makes any statement made in the Registration Statement or related prospectus untrue or which requires the making of any changes in such Registration Statement or prospectus so that they will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made not misleading, Xxxxxx agrees that it shall forthwith discontinue disposition of shares pursuant to such Registration Statement until Xxxxxx’s receipt of the copies of the supplemented or amended prospectus (as determined which the Company shall use commercially reasonable efforts to prepare and distribute promptly) or until it is advised in writing by the Company that the use of the prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the prospectus. Notwithstanding anything to the contrary in this Warrant, upon the delivery of a Suspension Notice the Company may delay the filing of any required amendment or supplement to the Registration Statement if: (a) in the good faith and reasonable judgment of the Board of Directors of the Company, disclosure of such amended information could be seriously detrimental to the Company, and the Board of Directors of the Company concludes, as a result, that it is in the best interest of the Company to defer the filing of such amendment or supplement at such time, and (b) the Company furnishes to Holder a certificate signed by the Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company, it could be seriously detrimental to the Company for such amendment or supplement to be filed at such time and that it is, therefore, in the best interest of the Company to defer the filing of such amendment or supplement to the Registration Statement; provided, however, that (i) the Company shall have the right to defer such filing for a period of not more than thirty (30) days, (ii) the Company shall not defer its counsel obligation in its sole discretion)this manner more than two times and (iii) the Registration Statement Effective Period shall be extended for the amount of time that the Registration Statement is unavailable due to such a deferral. The Company shall be permitted to enter stop transfer instructions with the Company’s transfer agent with respect to the Registrable Securities during any period under which a Suspension Notice shall be in effect. The provisions of this Section 8 shall terminate with respect to any particular Registrable Securities when such Registrable Securities shall have been sold or otherwise disposed of in accordance with the intended method of disposition set forth in the Registration Statement. As long as the Holder owns any Registrable Securities, forthwith discontinue its disposition the Company shall use commercially reasonable efforts to file all required reports with the SEC, or otherwise make available “adequate current public information” about itself, within the meaning of Warrant Shares Rule 144(c) under the 1933 Act, to potentially make available to the Holder the benefits of certain rules and regulations of the SEC which may permit the sale of the Registrable Securities without registration. Notwithstanding the foregoing, to the extent that a holder of Registrable Securities may dispose of such Registrable Securities pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereof.
(e) The Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectus.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) liable to include any such holder for any breach of the Holders’ Warrant Shares in such underwriting unless they accept the terms provisions of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders)this Section 8.
Appears in 1 contract
Registration of Warrant Shares. In the event that the shares of Common Stock issuable upon exercise of the 2008 Warrant (athe “2008 Warrant Shares”) If are not registered for resale pursuant to an effective registration statement, Arena shall, thereafter, upon receipt of a written request from Mainfield (but without any obligation to do so) the Company proposes to register (including for this purpose a registration effected by the Company for stockholders other than the Holders) any of its stock or other securities under the Act in connection “Notice Date”), prepare and file with the public offering of such securities solely for cash (other than Securities and Exchange Commission a shelf registration statement relating either covering the resale of all 2008 Warrant Shares for an offering to the sale of securities to employees of the Company be made on a continuous basis pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), the Company shall, at such time, promptly give each Holder written notice of such proposed registration. Upon the written request of each Holder given within twenty (20) days after mailing of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions of Section 8(c), endeavor to cause to be registered under the Act all of the Warrant Shares that each such Holder has requested to be registered.
(b) Whenever required under this Section 8(a) to effect the registration of any Warrant Shares, the Company shall, as expeditiously as reasonably possible use reasonable efforts to (i) file a registration statement (the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective 415 under the Securities Act Act, with the 2008 Warrant Shares being treated as “Registrable Securities” in accordance with, and being governed by, that certain Registration Rights Agreement, dated as of 1933December 24, 2003, as amended (the "Act") as soon thereafter as reasonably practicable. The Company promptly shall provide each Holder with such copies of the final prospectus contained in the “Registration Statement after it becomes effective as they shall reasonably request. In additionRights Agreement”), the Company shall (a) use reasonable efforts to keep the Registration Statement effective for a period ending on the earlier provisions and terms of (x) 120 days from its effective date or (y) when all such Warrant Shares can which will be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934applicable thereto mutates mutandis, as amended ("Reports") on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filed.
(c) Notwithstanding anything contained herein to the contrary, the Company shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the and Mainfield had executed such Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests Rights Agreement as of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delay.
(d) Each Holder shall (i) reasonably cooperate with the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereof.
(e) The Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i)Notice Date; provided, however, that (i) references in the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure Registration Rights Agreement to the benefit initial Filing Date shall be deemed amended to mean 30 days after the Notice Date; (ii) Section 2(b) of any Holder Indemnitee on account of any such Loss arising from the Registration Rights Agreement shall be deemed amended to require that the initial Registration Statement required to be filed hereunder shall cover the sale of the 2008 Warrant Shares by such Holder Indemnitee to any person if a copy Shares; (iii) Sections 2(e) and 2(f) of the definitive prospectus Registration Rights Agreement shall be deemed deleted and shall not have been delivered or sent apply; (iv) references in the Registration Rights Agreement to such person within the time required by initial Required Effectiveness Date shall be deemed amended to mean 120 days after the Act Notice Date; and (v) the limitations on liquidated damages (including the 1% and 2% calculations and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained 10% cap) set forth in such preliminary prospectus was corrected in the definitive prospectus.
(fSection 2(c) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company Registration Rights Agreement shall apply on an aggregate basis (and not be required under Section 8(aon an individual basis) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company registration rights granted under this Section 5.02 and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders)Registration Rights Agreement.
Appears in 1 contract
Registration of Warrant Shares. (a) If (but without any obligation to do so) the Company proposes CompuMed shall use reasonable efforts to register the sale of the shares underlying the Warrants (including for this purpose a the "Warrant Shares")in an S-3 registration effected by the Company for stockholders other than the Holders) any of its stock or other securities under the Act in connection statement with the public offering Securities and Exchange Commission within 180 days of such securities solely for cash the Closing (other than a registration statement relating either to shares the sale of securities which has previously been registered under CompuMed's August 1992 registration statement). CompuMed shall, to employees the extent permissible, take the position that the 1992 registration statement covers 25,000 Warrant Shares. If CompuMed has not effected a registration of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction), the Company shall, at such time, promptly give each Holder written notice sale of such proposed registration. Upon the written request of each Holder given within twenty (20) days after mailing of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions of Section 8(c), endeavor to cause to be registered under the Act all of the Warrant Shares within 180 days of the Closing, then at any time thereafter,but only once, SASCo may request that each such Holder has requested to be registered.
(b) Whenever required under this Section 8(a) to effect CompuMed so register the registration sale of any the Warrant Shares, the Company shall, as expeditiously as reasonably possible in which case CompuMed shall use reasonable its best efforts to so register the sale of the Warrant Shares at its sole cost and expense, and shall "blue sky" such sale in Ohio, California and such other States as SASCo may reasonably request; provided, however, that CompuMed shall not be required to incur the expense of a special audit of its books to effect such registration, and provided further that CompuMed shall not be required to endeavor to register such sale if within three weeks of SASCo's request CompuMed shall deliver to SASCo (i) file an opinion of its counsel that the transaction or transactions with respect to which such registration is requested constitutes a transaction or transactions as to which registration statement (the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective is not required under the Securities Act of 1933, as amended (the "Act") as soon thereafter as reasonably practicable. The Company promptly shall provide each Holder with such copies of the final prospectus contained in the Registration Statement after it becomes effective as they shall reasonably request. In addition, the Company shall (a) use reasonable efforts to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filed.
(c) Notwithstanding anything contained herein to the contrary, the Company shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delay.
(d) Each Holder shall (i) reasonably cooperate with the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon there is simultaneously delivered to SASCo a letter from the happening transfer agent of CompuMed assuring the transferability of the Warrant Shares. CompuMed shall not be required to include in any event as registration statement any Warrant Shares unless SASCo shall have at its expense provided CompuMed with a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue written statement of a all material fact or omits to state any material fact facts required to be stated therein or necessary to make in such registration statement concerning SASCo, its officers, directors and shareholders, the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant and the sale of same, and agreed to the Registration Statementdefend, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereof.
(e) The Company shall indemnify and hold harmless each Holder the underwriters participating in such offering and its respective officers, directors, employees, members, agents, affiliates CompuMed and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated therein from its directors and officers against any claimloss, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit cost or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, expense that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit may arise because of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered untrue or sent to such person within the time required by the Act and the regulations thereunder, and an allegedly untrue statement or alleged untrue statement statements or omission or alleged omission of a material fact contained made by SASCo in a written statement to CompuMed for inclusion in such preliminary prospectus was corrected registration statement; provided that CompuMed agrees to defend, indemnify and hold SASCo, and each of its directors and officers against any loss, cost or expense that may arise because of any untrue or allegedly untrue statements or omission or alleged omission of a material fact made in the definitive prospectusregistration statement other than any untrue or allegedly untrue statements or omission or alleged omission of a material fact made by CompuMed in reliance upon a written statement of SASCo to CompuMed provided for inclusion in such registration statement.
(fb) In connection with If at the time a request is made for registration CompuMed is engaged in any offering involving activities (including, without limitation, activities related to an underwriting acquisition by or of shares CompuMed) which the Board of Directors of CompuMed reasonably and in good faith determines would cause the Company’s capital stock, the Company shall not be required under Section 8(a) registration so requested to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it have a materially adverse effect on CompuMed or its business (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by reason of the Company expense of registration), CompuMed may postpone such registration until its Board of Directors determines that the underwriters determine circumstances no longer require such postponement; provided, however, that no such postponement may extend for a period in their sole discretion is compatible -------- ------- excess of one hundred twenty (120) days.
(c) CompuMed will use its best efforts to maintain the effectiveness for up to nine months, of any registration statement pursuant to which any of its securities are being offered, and from time to time will amend or supplement such registration statement and the prospectus contained therein as and to the extent necessary to comply with the success Securities Act of 1933 (the "1933 Act") and any applicable state statute or regulation. CompuMed will also provide SASCo with as many copies of the offering, then the Company shall be required to include prospectus contained in the offering only that number of any such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions registration statement as shall mutually be agreed to by such selling stockholders)it may reasonably request.
Appears in 1 contract
Samples: Agreement (Compumed Inc)
Registration of Warrant Shares. (a) If (but without If, at any obligation time prior to do so) the Company proposes to register (including for this purpose a registration effected by close of business on the Company for stockholders other than [ ] anniversary of the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a Effective Date, there is no registration statement relating either to in effect for the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction)Warrant Shares, the Company shallCompany, at such time, promptly give each Holder written notice of such proposed registration. Upon upon the written request of each Holder given within twenty (20) days after mailing holders of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions Warrants and of Section 8(c), endeavor to cause to be registered under the Act all Warrant Shares representing an aggregate of 50% or more of the Warrant Shares, will file with the Securities and Exchange Commission under the Securities Act, such registration statements and amendments thereto and such other filings as may be required to permit the public offering and sale of such Warrant Shares that each such Holder has requested in compliance with the Securities Act. The Company shall be required to be registeredregister Warrant Shares no more than once pursuant to this Section 5.01(a).
(b) Whenever required under this Section 8(a) Each such holder shall pay the underwriting discount attributable to effect the registration of any such holder’s Warrant Shares, any transfer tax payable with respect thereto and the Company shall, as expeditiously as reasonably possible use reasonable efforts to (ifees and expenses of such holder’s counsel. All other expenses of registration under Section 5.01(a) file a registration statement (or Section 5.01(b) shall be borne by the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective under the Securities Act of 1933, as amended (the "Act") as soon thereafter as reasonably practicable. The Company promptly shall provide each Holder with such copies of the final prospectus contained in the Registration Statement after it becomes effective as they shall reasonably request. In addition, the Company shall (a) use reasonable efforts to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filedCompany.
(c) Notwithstanding anything contained herein The Company will agree to indemnify the holders of Warrant Shares that are included in a registration statement or amendments to existing registration statements pursuant to this Section 5.01 substantially to the contrary, the Company shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") same extent as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, agreed to indemnify the Underwriters in each case, that the Underwriting Agreement and such holders will agree to indemnify the Company reasonably determines is and any underwriter with respect to information furnished by them in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes writing to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related for inclusion therein substantially to the Company (rather than disclosure required to be provided by same extent as the holders), Underwriters have indemnified the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delayin the Underwriting Agreement.
(d) Each Holder If the offering pursuant to any registration statement provided for herein is made through underwriters, the Company will enter into an underwriting agreement in customary form and indemnify, in customary form, such underwriters and each person who controls any such underwriter within the meaning of the Securities Act. Such underwriting agreement shall (i) reasonably cooperate with contain provisions for the indemnification of the Company in connection with customary form, provided that the preparation and filing of aggregate amount that may be recovered from any such underwriter pursuant to such provisions shall be limited to the Registration Statement and execute and deliver any agreements or instruments reasonably requested by total price at which the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereof.
(e) The Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred purchased by any such Holder Indemnitee in connection with underwriter under such claim, action, suit or proceeding or the defense thereof, except underwriting agreement were offered to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectuspublic.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders).
Appears in 1 contract
Samples: Common Share Warrant Agreement (Brandywine Operating Partnership Lp /Pa)
Registration of Warrant Shares. (a) If (but without any obligation Holders of Warrants shall be able to do so) the Company proposes to register (including for this purpose a registration effected by the Company for stockholders other than the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than exercise their Warrants only if a registration statement relating either to the sale Warrant Shares is then in effect, or the exercise of securities to employees such Warrants is exempt from the registration requirements of the Company pursuant Securities Act and such securities are qualified for sale or exempt from qualification under the applicable state blue sky laws. Subject to a stock option, stock purchase or similar plan or a SEC Rule 145 transactionBlack Out Periods (as hereinafter defined), the Company shall, at such timetime as the average daily Closing Price of the Class A Common Stock is greater than or equal to 85% of the Exercise Price for twenty consecutive Trading Days, promptly give each Holder written notice of such proposed registration. Upon the written request of each Holder given within twenty (20) days after mailing of such notice by the Company in accordance with Section 18(d) hereofAWT will prepare, the Company shall, subject to the provisions of Section 8(c), endeavor file and use its best efforts to cause to be registered under the Act become effective a registration statement in respect of all of the Warrant Shares that each such Holder has requested to be registered.
(b) Whenever required under this Section 8(a) to effect the registration of any Warrant Shares, the Company shall, as expeditiously as reasonably possible and AWT shall use its commercially reasonable efforts to (i) file a keep such registration statement (the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared continuously effective under the Securities Act of 1933in order to permit the prospectus included therein to be lawfully delivered. Notwithstanding the foregoing, as amended AWT shall not be required to amend or supplement the registration statement, any related prospectus or any document incorporated therein by reference, for a period (the a "ActBlack Out Period") as soon thereafter as reasonably practicable. The Company promptly shall provide each Holder with such copies not to exceed the shorter of (x) the final prospectus contained in the Registration Statement after it becomes effective as they shall reasonably request. In addition, the Company shall (a) use reasonable efforts to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or the information responsible for the Black Out Period is disclosed to the public and (y) when all such Warrant Shares can be sold without limitation or delay under Rule 144 and 60 days (bprovided that no two Black Out Periods shall occur during any period of 135 consecutive days) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filed.
(c) Notwithstanding anything contained herein to the contrary, the Company shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delay.
(d) Each Holder shall (i) reasonably cooperate with the Company in connection with the preparation an event occurs and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event is continuing as a result of whichwhich the registration statement, the Registration Statement (any related prospectus or any prospectus included therein), document incorporated therein by reference as then amended or supplemented would, in effectAWT's good faith judgment, includes contain an untrue statement of a material fact or omits omit to state any a material fact required to be stated therein or necessary in order to make the statements therein not misleadingtherein, in the light of the circumstances under which they were made made, not misleading, and (as determined by the Company or its counsel ii)(A) AWT determines in its sole discretion)good faith judgment that the disclosure of such event at such time would have a material adverse effect on the business, forthwith discontinue its disposition operations or prospects of Warrant Shares pursuant AWT or (B) the disclosure otherwise relates to a material business transaction which has not yet been publicly disclosed; provided that no Black Out Period may be in effect during the six months prior to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from Warrant Expiration Date and there shall be no more than three Black Out Periods during the Company relating theretoterm of the Warrants. Transfer Restric- tions/ Listing: The Company agrees to Warrants will be freely transferrable and freely tradable. AWT shall use its best commercially reasonable efforts to prepare any necessary amendments or supplements to secure the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereof.
(e) The Company shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each listing of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated therein from Warrants and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred by any such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person upon each national securities exchange or automated quotation system, if a copy of any, upon which the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectus.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stockClass A Common Stock are then listed and shall use its commercially reasonable efforts to maintain such listing, the Company shall not be required under Section 8(a) to include so long as any other shares of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company Class A Common Stock shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder listed or in such other proportions as shall mutually be agreed to by such selling stockholders)quoted.
Appears in 1 contract
Samples: Recapitalization Agreement (Compagnie Generale Des Eaux)
Registration of Warrant Shares. (a) If (but without If, at any obligation time prior to do so) the Company proposes to register (including for this purpose a registration effected by close of business on the Company for stockholders other than [ ] anniversary of the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a Effective Date, there is no registration statement relating either to in effect for the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction)Warrant Shares, the Company shallCompany, at such time, promptly give each Holder written notice of such proposed registration. Upon upon the written request of each Holder given within twenty (20) days after mailing holders of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions Warrants and of Section 8(c), endeavor to cause to be registered under the Act all Warrant Shares representing an aggregate of 50% or more of the Warrant Shares, will file with the Securities and Exchange Commission under the Securities Act, such registration statements and amendments thereto and such other filings as may be required to permit the public offering and sale of such Warrant Shares that each such Holder has requested in compliance with the Securities Act. The Company shall be required to be registeredregister Warrant Shares no more than once pursuant to this Section 5.01(a).
(b) Whenever required under The Company will permit, subject to the last sentence of this Section 8(a) 5.01(b), any Warrant Shares to effect be included, at the registration request of any the holders of such Warrant Shares, in any registration of securities of the Company shall, as expeditiously as reasonably possible use reasonable efforts to (iother than shares of Preferred Stock for an employees' option or stock purchase plan or shares registered on Form S-4 in connection with an arms-length merger transaction) file under a registration statement (filed by the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective Company under the Securities Act at any time prior to the close of 1933, as amended (business on the "Act") as soon thereafter as reasonably practicable[ ] anniversary of the Effective Date. The Company promptly shall provide written notice to the record holders of all Warrants and Warrant Shares at least 30 days prior to the filing of any such registration statement sent by registered mail to the address of record of each Holder with such copies holder. If the offering pursuant to any registration statement described in this Section 5.01(b) is made through underwriters and the managing underwriter of such offering shall advise the Company in writing that, in its opinion, the distribution of the final prospectus contained number of Warrant Shares requested to be included in the Registration Statement after it becomes effective as they shall reasonably request. In addition, registration concurrently with the securities being registered by the Company would materially and adversely affect the distribution of such securities by the Company, then all selling security holders (but not the Company) shall (a) use reasonable efforts reduce the amount of securities each intended to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all distribute through such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") offering on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filedpro rata basis.
(c) Notwithstanding anything contained herein Each such holder shall pay the underwriting discount attributable to such holder's Warrant Shares, any transfer tax payable with respect thereto and the contrary, the Company fees and expenses of such holder's counsel. All other expenses of registration under Section 5.01(a) or Section 5.01(b) shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided borne by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous DelayCompany.
(d) Each Holder shall (i) reasonably cooperate The Company will agree to indemnify the holders of Warrant Shares that are included in a registration statement or amendments to existing registration statements pursuant to this Section 5.01 substantially to the same extent as the Company has agreed to indemnify the Underwriters in the Underwriting Agreement and such holders will agree to indemnify the Company and any underwriter with respect to information furnished by them in writing to the Company for inclusion therein substantially to the same extent as the Underwriters have indemnified the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereofUnderwriting Agreement.
(e) The If the offering pursuant to any registration statement provided for herein is made through underwriters, the Company shall indemnify will enter into an underwriting agreement in customary form and hold harmless indemnify, in customary form, such underwriters and each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each person who controls any such underwriter within the meaning of the foregoingSecurities Act. Such underwriting agreement shall contain provisions for the indemnification of the Company in customary form, a "Holder Indemnitee") who is or provided that the aggregate amount that may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising recovered from any actual or alleged misrepresentation or misstatement of facts or omission such underwriter pursuant to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or such provisions shall be limited to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred total price at which the Warrant Shares purchased by any such Holder Indemnitee in connection with underwriter under such claim, action, suit or proceeding or the defense thereof, except underwriting agreement were offered to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectuspublic.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders).
Appears in 1 contract
Samples: Warrant Agreement (American Home Mortgage Holdings Inc)
Registration of Warrant Shares. a. With respect to 100,000 of the Warrant Shares during the period beginning on the date of issuance of this Warrant and ending on the Expiration Date, and with respect to the remaining 100,000 Warrant Shares during the period beginning on the second anniversary hereof and ending on the Expiration Date (a) If the Warrant Shares that are subject to registration at a given time are referred to herein as the "Registrable Warrant Shares"), the Holder shall have the right to request the filing of a registration statement on Form S-3 (but without any obligation such requests shall be in writing and shall state the number of shares of Registrable Warrant Shares to do so) be disposed of and the intended methods of disposition of such shares by such Holder); provided, however, that the Company proposes shall not be obligated to register effect any such registration after the Company has effected two (including for this purpose 2) such registrations pursuant to such a request of the Holders.
b. In the case of each registration effected by the Company for stockholders other than the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a registration statement relating either to the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction)Section 12.a., the Company shall, at such time, promptly give will keep each Holder written notice of such proposed registration. Upon advised in writing as to the written request initiation of each Holder given within twenty (20) days after mailing of such notice by registration and as to the Company in accordance with Section 18(d) hereofcompletion thereof. At its expense, the Company shallwill use its best efforts to:
(1) File such S-3 registration statement with the Securities and Exchange Commission within 120 days of receive a request pursuant to Section 12.a. and, subject to the provisions of Section 8(c)extent practicable, endeavor to cause to be registered under the Act all of the Warrant Shares that each such Holder has requested to be registered.
(b) Whenever required under this Section 8(a) to effect the registration of any Warrant Shares, the Company shall, as expeditiously as reasonably possible use reasonable efforts to (i) file a registration statement (the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective within 120 days of such request.
(2) Keep the registration statement effective for six months after the effective date of such registration statement;
(3) Prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement;
(4) Furnish such number of prospectuses and other documents incident thereto, including any amendment of or supplement to the prospectus, as a Holder from time to time may reasonably request;
(5) Notify the Holder at any time when a prospectus relating to Registrable Warrant Shares is required to be delivered under the Securities Act of 1933, as amended (the "Act") as soon thereafter as reasonably practicable. The Company promptly shall provide each Holder with such copies of the final prospectus contained in the Registration Statement after it becomes effective as they shall reasonably request. In addition, the Company shall (a) use reasonable efforts to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filed.
(c) Notwithstanding anything contained herein to the contrary, the Company shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous Delay.
(d) Each Holder shall (i) reasonably cooperate with the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, which the Registration Statement (or any prospectus included therein)in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleading, misleading or incomplete in the light of the circumstances under which they were made (then existing, and at the request of any such seller, prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment of such prospectus as determined by the Company or its counsel in its sole discretion)may be necessary so that, forthwith discontinue its disposition of Warrant Shares pursuant as thereafter delivered to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities purchasers of such amendments or supplements reasonably sufficient for the distribution thereof.
(e) The Company shares, such prospectus shall indemnify and hold harmless each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each not include an untrue statement of the foregoing, a "Holder Indemnitee") who is or may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising from any actual or alleged misrepresentation or misstatement of facts or omission to represent or state any material fact or omission omit to state a material fact required to be stated therein or necessary to make the facts stated under statements therein not misleading or incomplete in the light of the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses then existing;
(including attorney's fees, judgments, fines and amounts paid in settlement6) ("Loss") actually and reasonably incurred by any Cause all such Holder Indemnitee in connection with such claim, action, suit or proceeding or the defense thereof, except to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Registrable Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectus.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders registered pursuant hereunder to be included in such offering exceeds the amount of listed on each securities sold other than exchange on which similar securities issued by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, are then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders)listed.
Appears in 1 contract
Samples: Settlement & Dispute Resolution (Microelectronic Packaging Inc /Ca/)
Registration of Warrant Shares. (a) If (but without If, at any obligation time prior to do so) the Company proposes to register (including for this purpose a registration effected by close of business on the Company for stockholders other than [fifth][tenth] anniversary of the Holders) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a Effective Date, there is no registration statement relating either to in effect for the sale of securities to employees of the Company pursuant to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction)Warrant Shares, the Company shallCompany, at such time, promptly give each Holder written notice of such proposed registration. Upon upon the written request of each Holder given within twenty (20) days after mailing holders of such notice by the Company in accordance with Section 18(d) hereof, the Company shall, subject to the provisions Warrants and of Section 8(c), endeavor to cause to be registered under the Act all Warrant Shares representing an aggregate of 51% or more of the Warrant Shares, will file with the Securities and Exchange Commission under the Securities Act, such registration statements and amendments thereto and such other filings as may be required to permit the public offering and sale of such Warrant Shares that each such Holder has requested in compliance with the Securities Act. The Company shall be required to be registeredregister Warrant Shares no more than once pursuant to this Section 5.01(a).
(b) Whenever required under The Company will permit, subject to the last sentence of this Section 8(a) 5.01(b), any Warrant Shares to effect be included, at the registration request of any the holders of such Warrant Shares, in any registration of securities of the Company shall, as expeditiously as reasonably possible use reasonable efforts to (iother than shares of Common Stock for an employees’ option or stock purchase plan or shares registered on Form S-4 in connection with an arms-length merger transaction) file under a registration statement (filed by the "Registration Statement"), registering for resale the Warrant Shares and (ii) cause the Registration Statement to be declared effective Company under the Securities Act at any time prior to the close of 1933, as amended (business on the "Act") as soon thereafter as reasonably practicable[ ] anniversary of the Effective Date. The Company promptly shall provide written notice to the record holders of all Warrants and Warrant Shares at least 30 days prior to the filing of any such registration statement sent by registered mail to the address of record of each Holder with such copies holder. If the offering pursuant to any registration statement described in this Section 5.01(b) is made through underwriters and the managing underwriter of such offering shall advise the Company in writing that, in its opinion, the distribution of the final prospectus contained number of Warrant Shares requested to be included in the Registration Statement after it becomes effective as they shall reasonably request. In addition, registration concurrently with the securities being registered by the Company would materially and adversely affect the distribution of such securities by the Company, then all selling security holders (but not the Company) shall (a) use reasonable efforts reduce the amount of securities each intended to keep the Registration Statement effective for a period ending on the earlier of (x) 120 days from its effective date or (y) when all distribute through such Warrant Shares can be sold without limitation or delay under Rule 144 and (b) file all reports and forms required to be filed by it under the Securities Exchange Act of 1934, as amended ("Reports") offering on a timely basis so long as each Holder owns any Warrant Shares and shall provide each Holder copies thereof when filedpro rata basis.
(c) Notwithstanding anything contained herein Each such holder shall pay the underwriting discount attributable to such holder’s Warrant Shares, any transfer tax payable with respect thereto and the contraryfees and expenses of such holder’s counsel. All other expenses of registration under Section 5.01(a), the Company or Section 5.01(b) shall be entitled to postpone the filing of the Registration Statement otherwise required to be prepared and filed by it in accordance with subparagraph (b) or, in the event the Registration Statement has been declared effective, without suspending such effectiveness, instruct the Holder promptly in writing (or any subsequent holders thereof) not to sell or distribute any Warrant Shares (a "Delay") as long as the reason for non-disclosure continues, if the Company would be required to disclose in the Registration Statement the existence of any fact relating to a material business situation, transaction or negotiation, or would be required to disclose information that the Company has not otherwise made public, in each case, that the Company reasonably determines is in the best interests of the Company not to disclose at such time, and unless and until each Holder furnishes to the Company in writing information that may be required to prepare the disclosure required by Items 507 and 508 of Regulation S-B promulgated under the Act, with respect to such Holder's Warrant Shares being sold under the Registration Statement provided that, with respect to Delays because of information related to the Company (rather than disclosure required to be provided borne by the holders), the Company shall only be entitled to a maximum of three (3) Delays, each Delay not to exceed a period of thirty (30) days; and further provided, that no period of Delay shall commence within 60 days of a previous DelayCompany.
(d) Each Holder shall (i) reasonably cooperate The Company will agree to indemnify the holders of Warrant Shares that are included in a registration statement or amendments to existing registration statements pursuant to this Section 5.01 substantially to the same extent as the Company has agreed to indemnify the Underwriters in the Underwriting Agreement and such holders will agree to indemnify the Company and any underwriter with respect to information furnished by them in writing to the Company for inclusion therein substantially to the same extent as the Underwriters have indemnified the Company in connection with the preparation and filing of the Registration Statement and execute and deliver any agreements or instruments reasonably requested by the Company or its counsel in connection therewith and (ii) upon discovery that, or upon the happening of any event as a result of which, the Registration Statement (or any prospectus included therein), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made (as determined by the Company or its counsel in its sole discretion), forthwith discontinue its disposition of Warrant Shares pursuant to the Registration Statement, until such time as such Holder (or any holders) have received a supplemented or amended prospectus from the Company relating thereto. The Company agrees to use its best efforts to prepare any necessary amendments or supplements to the Registration Statement as soon as reasonably practicable after the same becomes necessary and to provide to each Holder quantities of such amendments or supplements reasonably sufficient for the distribution thereofUnderwriting Agreement.
(e) The If the offering pursuant to any registration statement provided for herein is made through underwriters, the Company shall indemnify will enter into an underwriting agreement in customary form and hold harmless indemnify, in customary form, such underwriters and each Holder and its respective officers, directors, employees, members, agents, affiliates and control persons (each person who controls any such underwriter within the meaning of the foregoingSecurities Act. Such underwriting agreement shall contain provisions for the indemnification of the Company in customary form, a "Holder Indemnitee") who is or provided that the aggregate amount that may be a party or is or may be threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of or arising recovered from any actual or alleged misrepresentation or misstatement of facts or omission such underwriter pursuant to represent or state any fact or omission to state a fact necessary to make the facts stated under the circumstances not materially misleading, in the Registration Statement or any amendment or supplement thereto or such provisions shall be limited to the prospectus incorporated therein from and against any claim, losses, liabilities, costs and expenses (including attorney's fees, judgments, fines and amounts paid in settlement) ("Loss") actually and reasonably incurred total price at which the Warrant Shares purchased by any such Holder Indemnitee in connection with underwriter under such claim, action, suit or proceeding or the defense thereof, except underwriting agreement were offered to the extent such Loss is the direct result of a misstatement or omission for which such Holder Indemnitee is liable to the Company under Section 9(i); provided, however, that the indemnification contained in this Section 8(e) with respect to any preliminary prospectus shall not inure to the benefit of any Holder Indemnitee on account of any such Loss arising from the sale of the Warrant Shares by such Holder Indemnitee to any person if a copy of the definitive prospectus shall not have been delivered or sent to such person within the time required by the Act and the regulations thereunder, and an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in such preliminary prospectus was corrected in the definitive prospectuspublic.
(f) In connection with any offering involving an underwriting of shares of the Company’s capital stock, the Company shall not be required under Section 8(a) to include any of the Holders’ Warrant Shares in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Warrant Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Warrant Shares, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders).
Appears in 1 contract
Samples: Warrant Agreement (Ametek Inc/)
